United States District Court, E.D. Missouri, Eastern Division
STEVE COX and SAMUEL R. MASON, individually and on behalf of a class of others similarly situated, Plaintiffs,
GORDMANS STORES, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for and
Memorandum in Support of Conditional Collective Action
Certification (ECF No. 40). This motion is fully briefed and
ready for disposition.
Steve Cox and Samuel R. Mason ("Plaintiffs") filed
a Complaint on February 17, 2016, alleging claims for
Violation of the Fair Labor Standards Act of 1938
("FLSA"). (Complaint ("Compl."), ECF No.
1). Plaintiffs purport to bring this putative collective
action on behalf of a class of Assistant Store Managers
("ASM") employees who worked for Defendant Gordmans
Stores, Inc. ("Gordmans"). Plaintiffs allege that
the ASM employees have been misclassified as
"exempt" and denied payment of all of their earned
wages and overtime compensation under the FLSA. (Compl.,
¶3). Plaintiffs also allege that Gordmans failed to
maintain accurate records regarding the hours worked by ASM
employees. (Compl., ¶l 5).
plaintiffs include Named Plaintiffs Steve Cox and Samuel
Mason (former ASM employees) and Opt-in Plaintiff Fallon
Strack (a former Operations Assistant Store Manager
("OPS"). Plaintiffs claim that the principal job
duty of Gordmans' ASM employee is customer service,
including sales, merchandising, unloading the trucks,
stocking, and inventory. (Compl., ¶9). Plaintiffs
further assert that their primary duty is not the performance
of work related to the management or general business
operations of Gordmans or its customers. (Compl., ¶10).
They contend that ASMs are not customarily or regularly
engaged to perform exempt supervisory/managerial work, such
as hiring, firing, disciplining, budgeting, and scheduling.
(Compl., ¶11). Plaintiffs allege that ASMs' primary
duties do not include the exercise of discretion an
independent judgment with respect to matters of significance.
I. Motion for Conditional Class
August 15, 2016, Plaintiffs filed the instant Motion for and
Memorandum in Support of Conditional Class Certification.
(ECF No. 40). Plaintiffs identify the putative class as
"All individuals employed by Gordmans Stores, Inc. as
Assistant Store Managers, Assistant Store Manager Operations,
or any Assistant Manager position, however variously titled,
from February 18, 2013 through the present." (ECF No.
40-11). Gordmans operated between 93 and 103 stores in 16
states during the relevant time period. (ECF No. 44 at 7).
Each store has between one and three assistant store
managers, based upon sales volume. The putative class of OPS
and ASM employees during the relevant time period is
approximately 549 persons. (ECF No. 44 at 7).
opposes class certification. Gordmans claims that conditional
class certification is improper because Plaintiffs have not
demonstrated a common policy. Specifically, Gordmans contends
that the proposed class of ASM employees and OPS employees
have different job duties and training manuals and are not
"similarly situated" for purposes of a proposed
class. Gordmans claims that Plaintiffs conflate the two
groups even though OPS employees have more managerial
authority and paperwork duties. (ECF No. 44 at 3-5). Gordmans
further states that ASM employees are not similarly situated
to one another.
argues that, based upon the retail management regulations,
retail management exceptions are necessarily a fact-sensitive
inquiry and not appropriate for collective class actions.
(ECF No. 44 at 7-8). Gordmans claims that Plaintiffs'
allegations rest on the proposition that "Gordmans
deviated from their internal policies and stated job
descriptions and forced Plaintiffs to perform duties
primarily outside of said job descriptions." (ECF No. 44
at 8 (emphasis in original)). Gordmans contends that where
Plaintiffs contend that their injury rises from a deviation
from policy, then such claims involve individualized
inquiries. (ECF No. 44 at 8-9 (citing Jost v.
Commonwealth Land Title Ins. Co., No. 4:08CV734CDP, 2009
WL 211943, at *4 (E.D. Mo. Jan. 27, 2009); Garner v.
Regis Corp., No. 03-5037-CV-SW-SWH, 2004 WL 5455905, at
*2 (W.D. Mo. Aug. 5, 2004); Diaz v. Elecs. Boutique of
Am., Inc., No. 04-CV-0840E(SR), 2005 WL 2654270, at *4
(W.D.N.Y.Oct. 17, 2005); Mike v. Safeco Ins. Co. of
Am., 274 F.Supp.2d 216, 220-21 (D. Conn. 2003)).
Gordmans notes that assistant managers do not receive the
same training nationwide and that the duties of OPS and ASM
employees vary widely, within the store and between stores.
(ECF No. 44 at 9-10). Gordmans asserts that Plaintiffs have
not sufficiently alleged that their job duties and
experiences were similar to the job duties and experience of
other ASM or OPS employees nationwide. (ECF No. 44 at 11-12).
Finally, Gordmans contends that the time frame for
identifying the proposed class is improper. Plaintiffs seek
to certify a three year limitations period, which requires a
showing of "willfulness." Gordmans states that
Plaintiffs have not set forth any evidence beyond conclusory
allegations in the Complaint that Gordmans acted
"willfully" in violation of the FLSA. (ECF No. 44
at 13). In addition, Gordmans engaged in a corporate
restructuring that became effective on July 24, 2016 that
eliminated the ASM and OPS positions; therefore, Gordmans
contends that the notice period for the proposed class should
cease on July 24, 2016. (ECF No. 44 at 14-15).
response, Plaintiffs contend that their proposed class is
proper based upon the lenient burden for conditional class
certification. Plaintiffs cite to several corporate policies
that uniformly apply to all Assistant Managers, regardless of
title. (ECF No. 45 at 4). Plaintiffs notes that Gordmans uses
same evaluation form used by Store Managers to evaluate
Assistant Managers; Gordmans uses same evaluation criteria
for all Assistant Managers; all Gordmans' Assistant
Managers are paid on a biweekly schedule and on a salary
basis; all Assistant Managers are paid pursuant to the
Gordmans' compensation guidelines; Gordmans uses a
standard application form and offer letter for all Assistant
Managers; Gordmans provides all Store Managers the same
"hiring toolkit" for hiring all Assistant Managers;
and Gordmans uses the same software (Kronos) to track
Assistant Mangers' Time off. (ECF No. 45 at 4).
Plaintiffs contend that, based upon the overwhelming record
demonstrating the similarly among all Assistant Mangers, then
this Court should conditionally certify this as a class
action. Plaintiffs maintain that the differences that
Gordmans identifies are simply minor, inconsequential
variations for purposes of conditional certification.
Plaintiffs point out that Gordmans classifies all Assistant
Managers as exempt based upon their singular classification
as Assistant Managers, without any regard to their individual
duties or other factors. (ECF No. 45 at 6). As a result,
Plaintiffs claim that Gordmans cannot now claim that the
positions should not be treated collectively for purposes of
conditional certification. (ECF No. 45 at 6 (citing
Nerland v. Caribou Coffee Co., 564 F.Supp.2d 1010,
1024 (D. Minn. 2007) ("The Court finds it disingenuous
for Caribou, on one hand, to collectively and generally
decide that all store managers are exempt from overtime
compensation without any individualized inquiry, while on the
other hand, claiming the plaintiffs cannot proceed
collectively to challenge the exemption."). Plaintiffs
also claim that Gordmans did not rebut the overwhelming
evidence-consisting chiefly of Gordmans' own documents
and admissions-that all Assistant Managers, regardless of
title, are similarly situated. (ECF No. 45 at 6-7).
further maintain that Gordmans is attempting to litigate the
merits of the exemption, which is improper at the conditional
certification stage of litigation. (ECF No. 45 at 7-8).
Similarly, Plaintiffs assert that Gordmans' claim that
evaluation of the exemption defenses will require an
individualized analysis and, therefore, must fail. In a
footnote, Plaintiffs argue that if the subclasses are too
distinct, then the Court can later create and certify two
subclasses, one for each position. (ECF No. 45 at 7, n. 1
(citing Arnold v. Directv, LLC, No. 4:10-CV-352-JAR,
2016 WL 1258579, at *4 (E.D. Mo. Mar. 31, 2016)).
likewise assert that they have alleged a willful violation
and the FLSA's three year statute of limitations should
define the temporal scope of the collective action.
Plaintiffs assert that they are not required at this step to
provide any evidence of Gordmans' willfulness. (ECF No.
45 at 9). In the interests of judicial economy, Plaintiffs
maintain that the class should extend the time period of the
proposed class back from the filing of the Complaint. (ECF
No. 45 at 9-1).
7 of the FLSA mandates that an employer may not subject
non-exempt employees to a work week in excess of forty hours,
unless the employee is compensated for his or her overtime
with additional pay of at least one and one-half times his or
her regular hourly wage. 29 U.S.C. § 207. A collective
action under the FLSA to recover overtime compensation and
liquidated damages may be maintained, "by any one or
more employees for and in behalf of himself or themselves and
other employees similarly situated." 29 U.S.C. §
216(b). Unlike a Rule 23 class action, a collective action
under the FLSA is pursued on an opt-in basis, requiring
employees to provide their consent in writing to join the
action. 29 U.S.C. § 216(b); Ford v. Townsends of
Ark., Inc., No. 4:08CV00509BSM, 2010 WL 1433455, at *3
(E.D. Ark. Apr. 9, 2010).
courts within the Eighth Circuit conduct a two-step analysis
to determine whether employees are "similarly
situated." Beasley v. GC Services LP, 270
F.R.D. 442, 444 (E.D. Mo. 2010); Littlefield v. Dealer
Warranty Services, LLC,679 F.Supp.2d 1014, 1016 (E.D.
Mo. 2010); Ford, 2010 WL 1433455, at *3. "Under
this two-step process, the plaintiff first moves for class
certification for notice purposes." Dernovish v.
AT&T Operations, Inc., No. 09-0015CVWODS, 2010 WL
143692, at * 1 (W.D. Mo. Jan. 12, 2010)(internal quotations
and citation omitted). "The plaintiffs motion for
certification is typically filed at an early stage of the
litigation thus requiring a lenient evaluation standard and
typically resulting in conditional certification of a
representative class." Kautsch v. Premier
Communications,504 F.Supp.2d 685, 688 (W.D. Mo. 2007)
(citations omitted). The Court does not reach the merits of