UNITED STATES DISTRICT COURT EASTERN...

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

Hope Halleen and Donna Maner,

individually and on behalf of all others

similarly situated,

Plaintiffs,

v.

Belk, Inc.,

Defendant.

CIVIL ACTION NO.: 4:16-CIV-00055

PLAINTIFFS’ MOTION TO CONDITIONALLY

CERTIFY COLLECTIVE ACTION AND TO APPROVE AND

FACILITATE NOTICE TO SIMILARLY SITUATED EMPLOYEES

Case 4:16-cv-00055-RC Document 30 Filed 04/29/16 of 23 PageID #: 157

i

Table of Contents

Table of Authorities ........................................................................................................................ ii

I. PRELIMINARY STATEMENT ............................................................................................ 1

II. PROCEDURAL HISTORY AND STATEMENT OF FACTS.............................................. 2

A. Procedural History............................................................................................................ 2

B. The Parties ........................................................................................................................ 2

a. Defendant Belk, Inc. ..................................................................................................... 2

b. Plaintiffs Hope Halleen and Donna Maner................................................................... 2

C. Belk Uniformly Classifies All STMs as Exempt from Overtime. ................................... 3

D. STMs Regularly Work Overtime Without Receiving Overtime Premium Pay. .............. 3

E. All STMs Have the Same Primary Job Duties. ................................................................ 3

F. STMs Are All Subject to Belk’s Uniform and Centrally Controlled Operations. ........... 5

III. ARGUMENT ....................................................................................................................... 6

A. Court-Authorized Notice is Fair, Efficient, and Advances the FLSA’s Goals. ............... 6

B. Plaintiffs Exceed Their Low Burden for Conditional Certification. ................................ 7

a. Plaintiffs Face a Low Standard of Proof at This Stage................................................. 7

b. Plaintiffs Meet and Exceed Their Low Burden Urgining Conditional Certification of

the Collective. ....................................................................................................................... 11

C. Immediate Notice is Necessary to Preserve STMs’ Rights. .......................................... 13

IV. CONCLUSION .................................................................................................................. 15


ii

Table of Authorities

Cases

Beall v. Tyler Techs., Inc., Civil Action No. 2:08-CV-422, 2009 U.S. Dist. LEXIS 52990 (E.D.

Tex. June 23, 2009) .............................................................................................................. passim

Behnken v. Luminant Mining Co., 997 F. Supp. 2d 511 (N.D. Tex. 2014) ............................... 8, 9

Betancourt v. Maxim Healthcare Serv’s, Inc., No. 10 Civ. 4763, 2011 WL 1548964 (N.D. Ill.

Apr. 21, 2011) .............................................................................................................................. 12

Chhab v. Darden Rests., Inc., No. 11 Civ. 8345, 2013 WL 5308004 (S.D.N.Y. Sept. 20, 2013) 15

Curless v. Great Am. Real Food Fast, Inc., 280 F.R.D. 429 (S.D. Ill. 2012) ........................ 14-15

Davida v. Newpark Drilling Fluids, L.L.C., No. SA-14-CA-552-HJB, 2015 U.S. Dist. LEXIS

44385 (W.D. Tex. Jan. 6, 2015) ..................................................................................................... 9

Harris v. Hinds County, Civil Action No. 3:12-cv-00542-CWR-LRA, 2014 U.S. Dist. LEXIS

14176 (S.D. Miss. Feb. 4, 2014) .................................................................................................... 8

Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835 (N.D. Cal. 2010) ......................................... 15

Hoffmann-La Roche v. Sperling, 493 U.S. 165 (1989) ............................................................ 6, 13

Kelly v. Healthcare Servs. Group, Inc., Civil Action No. 2:13-cv-00441-JRG, 2014 U.S. Dist.

LEXIS 61216 (E.D. Tex. May 2, 2014) ..................................................................... 10, 11, 12, 14

Lee v. Veolia ES Indus. Servs., No. 1:12-CV-136, 2013 U.S. Dist. LEXIS 74193 (E.D. Tex. Apr.

12, 2013) .............................................................................................................................. passim

Lee v. Veolia ES Indus. Servs., No. 1:12-CV-136, 2013 U.S. Dist. LEXIS 74194 (E.D. Tex. May

23, 2013) .................................................................................................................................. 7, 13

Luvianos v. Gratis Cellular, Inc., Civil Action No. H-12-1067, 2012 U.S. Dist. LEXIS 183027

(S.D. Tex. Dec. 10, 2012) .............................................................................................................. 9

McPherson v. Leam Drilling Sys., L.L.C., Civil Action No. 4:14-CV-02361, 2015 U.S. Dist.

LEXIS 40973 (S.D. Tex. Mar. 30, 2015) ..................................................................................... 15

Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) ................................................ 8-9, 9

Morris v. Lettire Constr., Corp., 896 F. Supp. 2d 265 (S.D.N.Y. 2012) ............................... 14, 15

Nguyen v. Versacom, L.L.C., Civil Action No. 3:13-CV-4689-D, 2015 U.S. Dist. LEXIS 39738

(N.D. Tex. Mar. 27, 2015) ................................................................................................... 8, 9, 10

Tice v. AOC Senior Home Health Corp., 826 F. Supp. 2d 990 (E.D. Tex. 2011) ............... passim

Vassallo v. Goodman Networks, Inc., No. 4:15CV97, 2015 U.S. Dist. LEXIS 79129 (E.D. Tex.

May 20, 2015) ...................................................................................................................... 7, 9, 10

Statutes

29 U.S.C. § 4 (2012) ...................................................................................................................... 5

29 U.S.C. § 201 (2012) .......................................................................................................... 1, 2, 5

29 U.S.C. § 216(b) (2012) ......................................................................................................... 6, 7


iii

29 U.S.C. §§ 1807, 468-69 (2012) ................................................................................................. 6

Other

Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in

the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 295 (2008) ......................................... 15


1

Named Plaintiffs, Hope Halleen and Donna Maner, and the seven Opt-in Plaintiffs1

(collectively, “Plaintiffs”), on behalf of themselves and others similarly sitauted, hereby file their

Motion to Conditionally Certify this Collective Action and to Approve and Facilitate Notice to

Similarly Situated Employees (“Motion”), and state:

I. PRELIMINARY STATEMENT

Defendant, Belk, Inc. (“Belk”), misclassifies its Sales Team Managers (“STMs”) as

exempt and fails to pay them overtime compensation for hours worked in excess of 40 per week,

in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), even though

STMs spend the majority of their workdays performing non-exempt, retail clerk duties such as:

cashiering; basic customer service; returns; stocking; inventory; cleaning; folding, tagging and

hanging clothes; and operational/clerical duties. Through this Motion, Plaintiffs, who worked in

at least 13 different store locations2 in five different states, seek to protect the rights of hundreds

of STMs across the country.

Plaintiffs exceed their low burden to establish that Belk STMs are similarly situated and

subjected to the same common, unlawful plan or policy of misclassifying them as exempt from

the overtime requirements of the FLSA, thereby depriving them of overtime wages earned.

Given the overwhelming precedent in this Circuit, this Court should grant Plaintiffs’ motion for

this archetypical FLSA collective action.

1 Seven Opt-In Plaintiffs Lindsay Pears, Dario Davis, Mack Parker, Rachel Pate, Jennifer Jones, Leah Laird,

and Rico Baker have opted in to this case by filing consents to join. ECF 11, 12 and 20. 2 In two of the 13 locations noted, Plaintiffs were employed as Sales Associates and Managers in

Training/Executive Trainees, rather than STMs. However, while working at those two locations, Plaintiffs had the

opportunity to witness and interact with other STMs.


2

II. PROCEDURAL HISTORY AND STATEMENT OF FACTS

A. Procedural History

On January 25, 2016, Plaintiffs Halleen and Maner filed their Amended Complaint

(“Complaint”) asserting their unpaid overtime misclassification claims on behalf of themselves

and others similarly situated. ECF 2. In its Answer, Belk admits that it classifies Plaintiffs and

the other STMs as exempt. ECF 14 at ¶¶ 3, 4, 33, 37-39. Belk admits that it did not track nor

keep records of STMs’ hours worked. Id. at ¶¶ 4, 38. Belk further admits it “did not perform a

person-by-person analysis of the job duties of STMs when making the decision to classify all of

them uniformly as exempt from the overtime protections of the FLSA.” Id. at ¶ 34. In their Rule

26(f) Status Report, the parties agreed, and this Court subsequently Ordered, that discovery

would be defered until the second phase of this case after a ruling on this Motoin. ECF 26, 27.

Thus, the Parties have not engaged in discovery beyond the exchange of initial disclosures.

B. The Parties

a. Defendant Belk, Inc.

Belk, Inc. is a Delaware corporation with headquarters in Charlotte, NC. ECF No. 14 at

¶¶ 14-18. “Belk . . . is the nation’s largest family owned and operated department store business

in the United States,” with 297 stores in 16 states. See Ex. A (excerpts of Belk’s 10-K, for fiscal

year ending January 31, 2015) at 4. Belk employs STMs at its store locations throughout the

nation. See Ex. B (compilation of 13 STM Job Postings/Descriptions from Belk’s website).

b. Plaintiffs Hope Halleen and Donna Maner

Plaintiff Halleen worked as a Belk STM from approximately September 2014 to February

2015 in Ft. Worth, Texas.3 Plaintiff Maner worked as a Belk STM from approximately March

3 Ex. C (Declaration of Hope Halleen (“Halleen Decl.”)) at ¶ 1.


3

2000 until July 2014 in Greensboro, North Carolina.4 In addition, Opt-In Plaintiffs worked as

STMs at Belk locations in: Alabama (Opt-Ins Pears, Pate, Davis and Laird); Louisiana (Opt-In

Jones); North Carolina (Opt-In Parker); and Georgia (Opt- In Baker).5 Plaintiffs allege that Belk

violated the FLSA by willfully failing to pay them and other similarly situated STMs overtime

for all hours worked in excess of 40 per workweek. ECF 2 at ¶¶ 1, 37, 39, 46 and 57.

C. Belk Uniformly Classifies All STMs as Exempt from Overtime.

Belk uniformally classifies all STMs nationwide as exempt, regardless of store size or

location. ECF 14 at ¶¶ 3, 4, 33, 37, 38, 39; see also Ex. B6 (“The Sales Team Manager is an

Exempt Position”) at 2 passim; Answer at ¶¶ 3-4, 33.7

D. STMs Regularly Work Overtime Without Receiving Overtime Premium Pay.

Belk STMs regularly work more than 40 hours in a workweek.8 Belk does not pay STMs

overtime compensation for the hours they work in excess of 40 per week.9 In fact, Belk does not

bother to track STMs’ hours worked. ECF 14 at ¶ 4.

E. All STMs Have the Same Primary Job Duties.

STMs’ job duties and functions are the same throughout the company at all locations.10

The job postings/descriptions specifically note that “The Sales Team Manager reports to the

4 Ex. D (Declaration of Donna Maner (“Maner Decl.”)) at ¶ 1.

5 Ex. E (Declaration of Lindsay Pears (“Pears Decl.”)) at ¶ 1; Ex. F (Declaration of Rachel Pate (“Pate

Decl.”)) at ¶ 1; Ex. G (Declaration of Dario Davis (“Davis Decl.”)) at ¶ 1; Ex. H (Declaration of Leah Laird (“Laird

Decl.”)) at ¶ 1; Ex. I (Declaration of Jennifer Jones (“Jones Decl.”)) at ¶ 1; Ex. J (Declaration of Mack Parker

(“Parker Decl.”)) at ¶ 1; Ex. K (Declaration of Rico Baker (“Baker Decl.”)) at ¶ 1. 6 Included in Ex. B are 13 identical job postings / descriptions for STM positions in Alabama, Arkansas,

Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina Tennessee, Texas

and Virginia. 7 See Halleen Decl. at ¶¶ 6-7; Maner Decl. at ¶¶ 7-8; Pears Decl. at ¶¶ 7-8; Pate Decl. at ¶¶ 7-8; Davis Decl.

at ¶¶ 7-8; Laird Decl. at ¶ 7; Jones Decl. at ¶¶ 7-8; Parker Decl. at ¶¶ 6-7; Baker Decl. at ¶¶ 8-9. 8 Halleen Decl. at ¶¶ 5, 10; Maner Decl. at ¶¶ 6, 11; Pears Decl. at ¶¶ 6, 11; Pate Decl. at ¶¶ 6-11; Davis

Decl. at ¶¶ 6, 11; Laird Decl. at ¶ 6, 10; Jones Decl. at ¶¶ 6, 11; Parker Decl. at ¶¶ 5, 10; Baker Decl. at ¶¶ 7, 12. 9 Halleen Decl. at ¶¶ 6-7; Maner Decl. at ¶¶ 7-8; Pears Decl. at ¶¶ 7-8; Pate Decl. at ¶¶ 7-8; Davis Decl. at ¶¶

7-8; Laird Decl. at ¶ 7; Jones Decl. at ¶¶ 7-8; Parker Decl. at ¶¶ 6-7; Baker Decl. at ¶¶ 8-9. 10

Halleen Decl. at ¶¶ 8-9; Maner Decl. at ¶¶ 9-10; Pears Decl. at ¶¶ 9-10; Pate Decl. at ¶¶ 9-10; Davis Decl.

at ¶¶ 9-10; Laird Decl. at ¶¶ 8-9; Jones Decl. at ¶¶ 9-10; Parker Decl. at ¶¶ 8-9; Baker Decl. at ¶¶ 10-11; Ex. B.


4

Assistant Store Manager or Store Manager and ensures the ‘uniform’ execution of the selling

function within their stores.” Ex. B at 2 passim (emphasis added). An STM’s purpose is

performing retail store clerk duties.11

Regardless of location, all STMs spend the vast majority

of their work time performing non-exempt duties, including: greeting and assisting customers;

cashiering; sales; returns; stocking; inventory; cleaning; folding, tagging and hanging clothes;

and operational/clerical duties .12

Tellingly, the STM job postings/descriptions specifically state

that STMs must have the ability to:

lift between 10 lbs to 72 lbs at floor level and/or team lift when necessary;

push or pull 100 lbs to 500 lbs carts to sales floors;

stand for long periods of time;

twist, bend and stoop to retrieve items from floor, shelves, racks, and hooks and

place items on floor, shelves, racks and hooks

Ex. B at p 3 passim. STMs’ primary duties do not vary among Belk’s retail locations.13

Belk’s

uniform STM job postings/descriptions from 13 states demonstrate Belk’s own view that all

STMs perform essentially the same duties, no matter where they are located. See Ex. B.

Consistent with Belk’s homogenous characterization of the STM position in the job postings/

descriptions, Plaintiffs from five states who worked in 13 locations all attest that STMs perform

the same job duties.14

STMs’ primary duties do not involve the management of other employees.15

Their

primary duties do not include hiring, firing or promoting employees, or setting their rates of pay,

11

Halleen Decl. at ¶¶ 2-3; Maner Decl. at ¶¶ 2-3; Pears Decl. at ¶¶ 2-3; Pate Decl. at ¶¶ 2-3; Davis Decl. at ¶¶

2-3; Laird Decl. at ¶¶ 2-3; Jones Decl. at ¶¶ 2-3; Parker Decl. at ¶¶ 2-3; Baker Decl. at ¶¶ 2-3. 12

Halleen Decl. at ¶ 2; Maner Decl. at ¶ 2; Pears Decl. at ¶ 2; Pate Decl. at ¶ 2; Davis Decl. at ¶ 2; Laird Decl.

at ¶ 2; Jones Decl. at ¶ 2; Parker Decl. at ¶ 2; Baker Decl. at ¶ 2. 13

Halleen Decl. at ¶¶ 2, 8-9; Maner Decl. at ¶¶ 2, 9-10; Pears Decl. at ¶¶ 2, 9-10; Pate Decl. at ¶¶ 2, 9-10;

Davis Decl. at ¶¶ 2, 9-10; Laird Decl. at ¶¶ 2, 8-9; Jones Decl. at ¶¶ 2, 9-10; Parker Decl. at ¶¶ 2, 8-9; Baker Decl. at

¶¶ 2, 10-11.

14 See Halleen Decl. at ¶ 2; Maner Decl. at ¶ 2; Pears Decl. at ¶ 2; Pate Decl. at ¶ 2; Davis Decl. at ¶ 2; Laird

Decl. at ¶ 2; Jones Decl. at ¶ 2; Parker Decl. at ¶ 2; Baker Decl. at ¶ 2. 15

Halleen Decl. at ¶ 4; Maner Decl. at ¶¶ 4-5; Pears Decl. at ¶¶ 4-5; Pate Decl. at ¶¶ 4-5; Davis Decl. at ¶¶ 4-

5; Laird Decl. at ¶¶ 4-5; Jones Decl. at ¶¶ 4-5; Parker Decl. at ¶ 4; Baker Decl. at ¶¶ 4-6.


5

and STMs have no authority to take any of these actions. Id. STMs spend very little time on

tasks such as sitting in on interviews or assisting with preparing performance reviews, and are

not ultimately responsible for these tasks. Id. Hiring, firing, discipline, scheduling, and

performance reviews are the ultimate responsibility of the Store Managers, Assistant Managers

or Human Resources, not STMs. Id. Similarly, Belk’s Store Managers are ultimately

responsible for the stores’ performance. Id. STMs neither set store policies or store goals nor

formulate or develop new Belk product and service offerings. Id.

F. STMs Are All Subject to Belk’s Uniform and Centrally Controlled

Operations.

Belk’s business model and meticulously cultivated brand depend on top-down control

over its store operations to ensure that each store in the chain operates uniformly. Belk’s Annual

Report and 10-k emphasize its centrally mandated focus as follows: Belk executes “centralized

initiatives at the individual stores” from three regional division offices, which notably provide “.

. . management and support for the personnel[ and] operations and maintenance of the Belk

stores . . . .” Ex. A at 3. Belk explains that through its various subsidiaries,16

it coordinates the

operations of its stores “on a company-wide basis.” Ex. A at 3.

Belk offers the following examples of services provided to its stores from its corporate

offices evidencing consistent corporate control: merchandising; merchandise planning and

allocation; advertising and sales promotion; information systems; human resources; public

relations; accounting; real estate and; store planning. Id. Belk has a detailed method by which

all of its stores implement uniform procedures for things such as dock efficiency, inbound freight

processing, selling skills and behaviors, and a workforce management system to create work

schedules. Id. at 4. All STMs are subject to Belk’s uniform Associate Handbook. Ex. L at 3.

16

Belk identifies the following subsidiaries as coordinating the management of Belk’s stores: Belk Stores

Services, Inc.; Belk Administration Company; Belk International, Inc. and; Belk Merchandising Company, LLC.


6

Similarly, the job postings/descriptions note, inter alia, that all STMs must “[e]nsure that

sales events and price changes are executed and signed according to company directive” and

“[e]xecute[] company and division directed floor sets.” Ex. B at 2 passim (emphasis added).

In light of the uniformity among STMs, Plaintiffs move for conditional certification on

behalf of themselves and all other current and former STMs employed by Belk at any time from

January 25, 2013 through the entry of final judgment in this case (the “Collective Action

Period”). ECF 2 at ¶ 30 (relating back three years prior to filing of Plaintiffs’ Complaint).

III. ARGUMENT

A. Court-Authorized Notice is Fair, Efficient, and Advances the FLSA’s Goals.

The FLSA authorizes private parties to bring an overtime claim “[o]n behalf of . . .

themselves and other employees similarly situated.” 29 U.S.C. § 216(b). An FLSA collective

action is a “unique species of group litigation” where each plaintiff, in order to be included in the

litigation, “must ‘opt-in’ to the suit by filing a written consent with the court.” ARTHUR R.

MILLER & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 1807,468-69 (3d ed. 2005).

As the Supreme Court has observed, the FLSA collective action mechanism is beneficial

because it provides plaintiffs with “the advantage of lower individual costs to vindicate rights by

the pooling of resources.” Hoffman-La Roche v. Sperling, 493 U.S. 165, 170 (1989). This

benefit “depends on employees receiving accurate and timely notice concerning the pendency of

the collective action, so that they can make informed decisions about whether to participate.” Id.

In this regard, the Supreme Court has noted that district courts have “a managerial responsibility

to oversee the joinder of additional parties to assure that the task is accomplished in an efficient

and proper way.” Id. at 170-71.


7

As this Court noted, under § 216(b), district courts have the authority to conditionally

certify collective actions and authorize notice to the members of the putative collective. Lee v.

Veolia ES Industries Serv., Inc., 2013 U.S. Dist. LEXIS 74193 (E.D. Tex. Apr. 12, 2013), report

and recommendation adopted in all relevant aspects, 2013 U.S. Dist. LEXIS 74194 (Clark, J.)17

(citations omitted) (granting conditional certification based on named plaintiff’s affidavit, along

with other affidavits, as well as “employment records”); see also Vassallo v. Goodman Networks,

Inc., 2015 U.S. Dist. LEXIS 79129, at *4 (E.D. Tex. May 20, 2015) (conditionally certifying a

nationwide FLSA collective of misclassified construction managers); Tice v. AOC Senior Home

Health Corp., 826 F. Supp. 2d 990, 994 (E.D. Tex. 2011) (citations omitted) (granting

conditional certification for FLSA collective of potentially over 700 nurses based on declarations

of two named plaintiffs and one former nurse). As this Court has further acknowledged, a

collective action “prevents piecemeal litigation, inconsistent adjudications, and difficult res

judicata issues.” Lee, 2013 U.S. Dist. LEXIS 74193, at *9 (citations omitted).

B. Plaintiffs Exceed Their Low Burden for Conditional Certification.

a. Plaintiffs Face a Low Standard of Proof at This Stage.

Although the Fifth Circuit has not formally adopted a specific approach for certification

of FLSA collective actions, district courts throughout the Eastern District of Texas and the Fifth

Circuit – including this very Court – use the two-stage process.18

See, e.g., Lee, 2013 U.S. Dist.

LEXIS 74193, at *11 (citations omitted); Vassallo, 2015 U.S. Dist. LEXIS 79129, at *4; Tice,

826 F. Supp. 2d at 994; see also Beall v. Tyler Tech., Inc., 2009 U.S. Dist. LEXIS 52990, *4-5

17

The only aspect of the Magistrate’s Report and Recommendation that the District Court did not adopt was

the inclusion of “supervisors” in the class definition. Lee, 2013 U.S. Dist. LEXIS 74194, at *4. 18

As this Court noted in Lee, this “two-stage approach [will be employed] because it is the predominant

method used by federal courts, including those within this District.” 2013 U.S. Dist. LEXIS 74193, at *11

(collecting cases); see also Tice, 826 F.Supp.2d at 994 (the “two-stage approach is the prevailing standard among

federal courts.”) (collecting cases).


8

(E.D. Tex. June 23, 2009) (citing cases and conditionally certifying a nationwide FLSA

collective of misclassified employees based on declarations of named plaintiffs and defendant’s

employee handbook indicating uniform treatment of all employees regardless of location).

Under this approach, certification for collective actions is divided into two stages. Beall, 2009

U.S. Dist. LEXIS 52990, at *4-5. First, is the notice stage. Id. at *5. In the notice stage, the

court decides, based on the pleadings and affidavits, whether notice of the action should be given

to the putative members of the FLSA collective. Id. The plaintiff’s burden at this stage is a

“lenient” one. Id. (citations omitted). “Notice is appropriate if the court concludes that there is

some factual nexus which binds the . . . potential class members together as victims of a

particularly alleged policy or practice.” Id. at *6. Typically, conditional certification is granted.

Id. at *5 (citations omitted); see also Lee, 2013 U.S. Dist. LEXIS 74193, at *13 (“‘Because the

court has minimal evidence’ at the notice stage, the standard is ‘fairly lenient,’ ‘and typically

results in ‘conditional certification’ of a representative class.’”) (citations omitted).

At the initial notice stage, plaintiffs must merely make a “modest factual showing” that

there are other employees who are “similarly situated” to them. Nguyen v. Versacom, LLC, 2015

U.S. Dist. LEXIS 39738, at *7-8 (N.D. Tex. Mar. 27, 2015) (plaintiffs need only make a modest

showing to meet the court’s lenient evietiary standard); Harris v. Hinds County, 2014 U.S. Dist.

LEXIS 14176, *10 (S.D. Miss. Feb. 4, 2014) (same); see also Behnken v. Luminant Mining Co.,

LLC, 997 F. Supp. 2d 511, n.6 (N.D. Tex. 2014) (“[n]umerous courts have emphasized that the

factual support necessary at this stage is modest, and [] the standard . . . is quite lenient”). “The

standard requires nothing more than ‘substantial allegations that the putative class members were

victims of a single decision, policy, or plan.’” Beall, 2009 U.S. Dist. LEXIS 52990, at *5-6


9

(citing, Mooney v. Aramco Serv. Co., 54 F. 3d 1207, 1214, n. 8 (5th

Cir. 1995)); see also Lee,

2013 U.S. Dist. LEXIS 74193, at *12-13.

At the notice stage, the merits of the plaintiffs’ claims and any defenses – including the

merits of any claimed exemptions – are irrelevant. Beall, 2009 U.S. Dist. LEXIS 52990, at *9

(citations omitted); see also Tice, 826 F.Supp.2d at 996, n.1; Lee, 2013 U.S. Dist. LEXIS 74193,

at *17 (citations omitted). Variations in factual specifics (e.g. recording time worked,

differences in facilities, differences about management) are “generally disregarded” where

employees are subject to the same unlawful policy. Lee, 2013 U.S. Dist. LEXIS 74193, at *19;

see also Vassallo, 2015 U.S. Dist. LEXIS 79129, at *17 (“[a]s long as the basic tasks and pay

policies are the same, it is immaterial that the employer’s different locations may have their own

rules and procedures”); Beall, 2009 U.S. Dist. LEXIS 52990, at *8, n. 3, *10 (rejecting alleged

differences between job duties, job locations, task assignments); Tice, 826 F.Supp.2d at 996

(rejecting the potential differences in job duties and work schedules). Courts do not make

credibility determinations at the notice stage. Luvianos v. Gratis Cellular, Inc., 2012 U.S. Dist.

LEXIS 183027, at *20 (S.D. Tex. Dec. 10, 2012); Davida v. Newpark Drilling Fluids, LLC, 2015

U.S. Dist. LEXIS 44385, at *11 (W.D. Tex. Jan. 6, 2015).

Moreover, extensive discovery is not necessary at the initial stage. Nguyen, 2015 U.S.

Dist. LEXIS 39738, at *7 (the rational “for leniency at this early stage[ is that]. . . plaintiffs have

not had time to conduct discovery”); Behnken, 997 F. Supp. 2d at 517 (same). In lieu of

discovery, courts routinely rely on the allegations set forth in the complaint and on employee

declarations about a common policy or practice. Lee, 2013 U.S. Dist. LEXIS 74193, at *11

(citing Mooney, 54 F. 3d at 1213-14); see also Nguyen, 2015 U.S. Dist. LEXIS 39738, at *8-9.

Thus, to meet their minimal burden at the first stage, Plaintiffs rely on: the well-pled allegations


10

in their Complaint; Plaintiffs’ own declarations; and Belk’s admissions, job postings/

descriptions, 10k and Associate Handbook.19

Instead, at this stage the court should evaluate whether the putative plaintiffs are similarly

situated with respect to their job requirements and pay provisions. Tice, 826 F.Supp.2d 995

(citations omitted); see also Lee, 2013 U.S. Dist. LEXIS 74193, at *13. FLSA plaintiffs need

only show that they are similarly situated, not identical. Tice, 826 F.Supp.2d 995 (emphasis

added); see also Nguyen, 2015 U.S. Dist. LEXIS 39738, at *5. The fact that individualized proof

may be necessary does not preclude conditional certification. Lee, 2013 U.S. Dist. LEXIS

74193, at *19 (citations omitted). Per Judge Gilstrap:

At the conditional certification stage, the Court’s primary concern is whether

“similarly situated plaintiffs” exist, who may together be the victims of “a single

decision, policy or plan.” . . . Determining the legality of such identified policy is

better left to the summary judgment stage, when the underlying evidence has been

fully developed through discovery.

Kelly v. Healthcare Serv. Grp., Inc., 2014 U.S. Dist. LEXIS 61216, *17 (E.D. Tex. May 2, 2014)

(internal citations omitted).

Kelly is particularly relevant to this case. In Kelly, Judge Gilstrap conditionally certified

a nationwide20

FLSA collective of Account Managers who were misclassified as exempt. The

defendant employed the plaintiffs at multiple locations across the country. Id. at *9. In support

of conditional certification, plaintiffs’ affidavits alleged that they were required to perform non-

exempt manual labor for the majority of their day. Id. at *8-9. The Kelly plaintiffs also

submitted the written job description for Account Managers, which was applicable across all of

the defendant’s facilities, further demonstrating that they were similarly situated. Id. at *10.

19

After the second stage, courts may undertake a more searching factual inquiry about whether collective

members are similarly situated. Lee, 2013 U.S. Dist. LEXIS 74193, at *12; Vassallo, 2015 U.S. Dist. LEXIS 79129,

at *7. 20

Several states were carved out due to similar pending litigation against the same defendant.


11

Like Plaintiffs in this case, the Kelly plaintiffs relied on the physical requirements set forth in

their job description. Id. The Kelly court found that because the job description contained

descriptions of physical manual labor21

“. . . a preliminary showing of similarly-situated

[plaintiffs] ha[d] been established in regard to their job functions.” Id.

Applying the Fifth Circuit’s lenient standard for conditional certification, courts in this

District have granted conditional certification on the basis of the declarations of the named

plaintiffs who testified that they were all subject to the same policy. Beall, 2009 U.S. Dist.

LEXIS 52990, at *6-7. Again, in Tice, supra, also an FLSA misclassification case, the court

conditionally certified an FLSA collective based upon the declaration of the named plaintiff and

another declarant who testified that they were subject to the same policies and had the same

duties. Tice, 826 F. Supp. 2d at 996.

b. Plaintiffs Meet and Exceed Their Low Burden Urgining Conditional

Certification of the Collective.

Plaintiffs easily meet their “lenient” burden of demonstrating that they and other STMs

are similarly situated with respect to their FLSA claims. First, Plaintiffs unquestionably

demonstrate that they “were victims of a single decision, policy, or plan.”22

Belk admits that it

classifies STMs as exempt. ECF 14 at ¶¶, 4, 33, 37, 38, and 39. Belk’s uniform job description

establishes that it classifies STMs as exempt – and therefore not entitled to overtime pay.23

Second, Plaintiffs – nine people who worked in at least 13 different locations in five

states – all performed the same primary duties: greeting and assisting customers; cashiering;

21

Similar to the STM job postings/descriptions here, the job descriptions in Kelly described the AM’s

“working condition” as “stand[ing], walk[ing] and bend[ing] most of the day,” and involving “pushing and pulling,

carrying weight up to 50 pounds, twisting, bending and reaching from floor to waist height and from waist to their

head.” Id. 22

Halleen Decl. at ¶¶ 2, 4, 6-9; Maner Decl. at ¶¶ 2, 4, 7-10; Pears Decl. at ¶¶ 2, 4, 7-10; Pate Decl. at ¶¶ 2, 4,

7-10; Davis Decl. at ¶¶ 2, 4, 7-10; Laird Decl. at ¶¶ 2, 4, 7-9; Jones Decl. at ¶¶ 2, 4, 7-10; Parker Decl. at ¶¶ 2, 4, 6-

9; Baker Decl. at ¶¶ 2, 4, 8-11. 23

See Ex. B; see also Halleen Decl. at ¶¶ 6-7; Maner Decl. at ¶¶ 7-8; Pears Decl. at ¶¶ 7-8; Pate Decl. at ¶¶ 7-

8; Davis Decl. at ¶¶ 7-8; Laird Decl. at ¶ 7; Jones Decl. at ¶¶ 7-8; Parker Decl. at ¶¶ 6-7; Baker Decl. at ¶¶ 8-9.


12

sales; returns; stocking; inventory; cleaning; folding, tagging and hanging clothes; and

operational/clerical duties of an hourly associate.24

An STM’s primary duty does not vary

among Belk’s stores.25

In addition, Belk’s own job postings/descriptions demonstrate the

uniformity with which Belk treats STMs. See Ex. B.26

Belk’s centralized and uniform

management of its store operations further assures that STMs are similarly situated. Ex. A at 3-

4. Further, Belk’s failure to conduct any sort of individualized analysis of STMs’ job functions

supports a finding that they all performed substantially the same primary duties. ECF 14 at ¶ 34.

Third, the declarations from nine STMs from five states around the country – North

Carolina, Louisiana, Texas, Georgia and Alabama – all indicate that Belk’s STMs nationwide

were subjected to the uniform policy of being misclassified as exempt from the payment of

overtime wages despite their primary duties being non-management. Even without Belk’s

admissions in their Answer, the additional evidence here – consisting of Belk’s own job

postings/descriptions from 13 states and information from their website, Belk’s annual report, the

Associate Handbook and Plaintiffs’ declarations – together far exceed the evidence this Court

and others in the Eastern District of Texas have found sufficient for conditional certification.

Lee, 2013 U.S. Dist. LEXIS 74193 (granting conditional certification based on named plaintiff’s

affidavit, along with other affidavits, as well as “employment records”); Kelly, 2014 U.S. Dist.

LEXIS 61216 (granting conditional certification nationwide on the basis of affidavits and job

description); Tice, 826 F. Supp. 2d 990 (granting conditional certification for FLSA collective of

24

Halleen Decl. at ¶¶ 2-3; Maner Decl. at ¶¶ 2-3; Pears Decl. at ¶¶ 2-3; Pate Decl. at ¶¶ 2-3; Davis Decl. at ¶¶

2-3; Laird Decl. at ¶¶ 2-3; Jones Decl. at ¶¶ 2-3; Parker Decl. at ¶¶ 2-3; Baker Decl. at ¶¶ 2-3. 25

Halleen Decl. at ¶¶ 8-9; Maner Decl. at ¶¶ 9-10; Pears Decl. at ¶¶ 9-10; Pate Decl. at ¶¶ 9-10; Davis Decl.

at ¶¶ 9-10; Laird Decl. at ¶¶ 8-9; Jones Decl. at ¶¶ 9-10; Parker Decl. at ¶¶ 8-9; Baker Decl. at ¶¶ 10-11. 26

These uniform job postings/descriptions demonstrate Belk’s uniform and consistent treatment of the STM

position nationwide, which further demonstrates that STMs are similarly situated; however, they are not offered for

the accuracy of the representations made therein regarding STMs’ purported job duties. See, e.g., Betancourt v.

Maxim Healthcare Serv’s, Inc., No. 10 Civ. 4763, 2011 WL 1548964, at *11 (N.D. Ill. Apr. 21, 2011) (“[P]laintiff is

not using the job title or uniform job description to show that the potential class members are not exempt employees.

Rather, Plaintiff is using it as evidence that he and the proposed class are similarly situated.”).


13

potentially over 700 nurses based on declarations of two named plaintiffs and one former nurse);

Beall, 2009 U.S. Dist. LEXIS 52990 (conditionally certifying a nationwide FLSA collective of

misclassified employees based on declarations of named plaintiffs and defendant’s employee

handbook indicating uniform treatment of all employees). Plaintiffs’ declarations alone are

sufficient to satisfy their burden because they demonstrate that Plaintiffs and the other STMs

“were victims of a single decision, policy, or plan” – a fact Belk freely admits. ECF 14 at ¶¶ 3,

4, 33, 37, 38, 39; see also Beall, 2009 U.S. Dist. LEXIS 52990, at *6-7 (citations omitted); see

also Tice, 826 F. Supp. 2d at 996.

Plaintiffs clearly exceed the necessary quantum of evidence to support conditional

certification. In this case, all STMs nationwide have the same job description which states their

“Essential Functions/Responsibilities.” Similarly, the pay provisions for all STMs are the same

– overtime exempt and paid a salary. Moreover, declarations from plaintiffs who worked in

several different states and different locations further support conditional certification of a

nationwide FLSA collective. Beall, 2009 U.S. Dist. LEXIS 52990, at *10.

C. Immediate Notice is Necessary to Preserve STMs’ Rights.

The Court should approve Plaintiffs’ proposed Collective Action Notice and Consent to

Join Form. Ex. M (Notice and Consent to Join Form). The Notice is “accurate,” “informative”

and is consistent with the model notices published by the Federal Judicial Center.27

See

Hoffmann-La Roche v. Sperling, 493 U.S. 165, 172 (1989). Moreover, this notice is the same in

substance as that approved by this Honorable Court in Lee. 2013 U.S. Dist. LEXIS 74194.

Furthermore given the breadth of the evidence – nine declarations from individuals who worked

at 13 different locations in five different states, plus Belk’s admissions regarding the uniformity

with which it treats STMs – the geographic scope of the collective should be nationwide. Beall,

27

See http://www.fjc.gov (Class Action Notices page) (last visited April 28, 2016).


14

2009 U.S. Dist. LEXIS 52990, at *10. And, given Plaintiffs’ allegations of willfulness, ECF 2 at

¶¶ 4, 42-43, 58-60, the look-back period should be three years to include all current and former

STMs employed at any time starting January 25, 2013 or thereafter. Lee, 2013 U.S. Dist. LEXIS

74193, at *23; Tice, 826 F.Supp2d at 996; Kelly, 2014 U.S. Dist. LEXIS 61216, at *19.

Preliminarily, notice should be sent to collective members via regular U.S. Mail and

email. To facilitate U.S. Mail and email notice, Plaintiffs request that the Court order Belk to

produce the names, last known mailing addresses, last known telephone numbers, last known

personal and work email addresses, work locations for all collective members, and social

security numbers for those members whose notices are returned undeliverable. The production

of such contact information is standard in FLSA cases. Beall, 2009 U.S. Dist. LEXIS 52990, at

*11 (court ordered production of names, job titles, addresses, telephone numbers, social security

numbers, email addresses, including personal and work emails); Tice, 826 F.Supp.2d at 996

(court ordered production of names, addresses, telephone numbers, social security numbers, and

emails). Producing such contact information is consistent with “the goals of the notice: to make

as many potential plaintiffs as possible aware of this action and their right to opt in . . . .” Morris

v. Lettire Constr. Corp., 896 F. Supp. 2d 265, 273 (S.D.N.Y. 2012) (internal quotation marks and

citation omitted).

Plaintiffs also request Court authorization to mantain a website where members of the

FLSA collective can review the notice and return their Consent to Join electronically if they

choose to join. See Beall, 2009 U.S. Dist. LEXIS 52990, at *16.

In addition to U.S. Mail and email notice, Plaintiffs request that notice be posted in Belk

break rooms and included in STMs’ pay envelopes or other method of delivery of their paycheck

information. See, e.g., Curless v. Great Am. Real Food Fast, Inc., 280 F.R.D. 429, 437 (S.D. Ill.


15

2012); McPherson v. Leam Drilling Sys., LLC, 2015 U.S. Dist. LEXIS 40973, at *43 (S.D. Tex.

Mar. 30, 2015) (ordering notice be posted on defendants’ offices).

Finally, Plaintiffs respectfully request that this Court order that Plaintiffs may send a

reminder mailing and email to all unresponsive STMs half-way through the notice period.

“Given that notice under the FLSA is intended to inform as many potential plaintiffs as possible

of the collective action and their right to opt-in, . . . a reminder notice is appropriate.” Morris,

896 F. Supp. 2d at 275. It is well documented that people often disregard collective action

notices. See Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law

Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 295 (2008). Reminder

mailings to potential opt-ins who have not responded to an initial mailing are common and cause

Belk no prejudice. See Chhab v. Darden Rests., Inc., No. 11 Civ. 8345, 2013 WL 5308004, at

*16 (S.D.N.Y. Sept. 20, 2013) (collecting cases); Harris v. Vector Mktg. Corp., 716 F. Supp. 2d

835, 847 (N.D. Cal. 2010) (approving reminder postcard).

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court: (1) conditionally

certify the proposed collective; (2) order Belk to produce a computer-readable data file

containing names, last known addresses and phone numbers, last known personal and work

emails, social security numbers, and work locations for all collective members; (3) authorize

Plaintiffs to mail and email the proposed Notice and Consent and Reminder Postcard to the

collective; (4) authorize Plaintiffs to create a website where collective members can review the

Notice and file a Consent; (5) order Belk to post the Notice in its break rooms and include it in

collective members’ pay envelopes or other method of delivery of their paycheck information as

may be applicable; and (6) order any further relief that this Court deems just and proper.


16

Dated: April 29, 2016

Boca Raton, FL

/s/ Alan L. Quiles

Alan L. Quiles

SBN: 24075418

E-Mail: [email protected]

Gregg I. Shavitz (pro hac vice approved)

E-mail: [email protected]

Paolo C. Meireles (pro hac vice approved)


SHAVITZ LAW GROUP, P.A.

1515 S. Federal Hwy., Suite 404

Boca Raton, Florida 33432

Telephone: (561) 447-8888

Facsimile: (561) 447-8831

Marc S. Hepworth (pro hac vice approved)


Charles Gershbaum (pro hac vice approved)


David A. Roth (pro hac vice approved)


Rebecca S. Predovan (pro hac vice approved)


HEPWORTH, GERSHBAUM & ROTH, PLLC

192 Lexington Avenue, Suite 802

New York, New York 10016

Telephone: (212) 545-1199

Facsimile: (212) 532-3801

Attorneys for Plaintiffs and the FLSA Collective


17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed the foregoing document with the Clerk of

Court using CM/ECF on April 29, 2016. I also certify that the foregoing document is being

served this day on all counsel of record or pro se parties identified on the attached Service List in

the manner specified, either via transmission of Notices of Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically Notices of Filing.

/s/ Alan L. Quiles

Alan L. Quiles, Esq.


18

SERVICE LIST

Halleen, et al. v. Belk, Inc.

CASE NO.: 4:16-CIV-00055

United States District Court for the Eastern District of Texas

John B. Brown

SBN: 00793412


Britney Dieng

SBN: 24071449


OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

Preston Commons West 8117 Preston Road, Suite 500

Dallas, TX 75225

Telephone: (214) 987-3800

Facsimile: (214) 987-3927

Attorneys for Defendant


19

CERTIFICATE OF CONFERENCE

Halleen v. Belk, Inc.

CASE NO.: 4:16-CIV-00055

United States District Court for the Eastern District of Texas

Pursuant to E.D. Tex. Local Rule CV-7(h) and (i), the undersigned has conferred with

opposing counsel regarding this matter on March 21, 2016 (during the parties’ Rule 26(f)

conference). Defendant contests that STMs are similarly situated for collective treatment

purposes. Thus, Defendant opposes the relief sought in the instant Motion.

/s/ Alan L. Quiles

Alan L. Quiles, Esq.


UNITED STATES DISTRICT COURT EASTERN...

Documents

Transcript of UNITED STATES DISTRICT COURT EASTERN...