COMER v. WALMART STORES, INC. (W.D.Mich. 2005)

RICHARD ENSLEN, District Judge

Consistent with the Court's Opinion of this date:

IT IS HEREBY ORDERED that Plaintiffs' Motion to Approve Notice to those "Similarly Situated" within the meaning of 29 U.S.C. § 216(b) (Dkt. No. 64) is GRANTED IN PART AND DENIED IN PART. Plaintiffs Motion is GRANTED to the extent that this Court approves Notice to advise the salaried assistant managers employed by Walmart at any time in the past three years only within Walmart's "Region 3," i.e., the management region for Michigan, Northern Indiana and Northern Ohio.

IT IS FURTHER ORDERED that Defendant shall produce a list of names and last known addresses of all its salaried assistant managers employed during the past three years in Region 3.

IT IS FURTHER ORDERED that Defendant shall either object to Plaintiffs' Proposed Notice (Dkt. No. 65, Ex. A) or submit its own proposed notice for review by this Court within 14 days of this Order.

This matter is before the Court on Plaintiffs Motion to Approve Notice to Those "Similarly Situated" Within the Meaning of 29 U.S.C. § 216(b). Plaintiffs request the Court to approve notice to advise salaried assistant managers employed by Walmart at any time in the past three years of their rights guaranteed by the Fair Labor Standards Act ("FLSA") and to provide them with the opportunity to "opt-in," pursuant to 29 U.S.C. § 216(b). (Pls. Mot. at ¶ 6.) Plaintiffs seek approval to notice the salaried assistant managers either in the United States (excluding New Mexico), in Walmart's "Region 3", or in the State of Michigan. (Pls. Mot. at ¶¶ 6-8.) Plaintiffs also seek an order requiring "Defendant to produce the list of names and last known addresses of all its salaried assistance managers employed during the past 3 years" who are to receive notice. (Pls. Mot. at ¶ 9.)

Under section 207(a) of the FLSA, employers are required to pay time and a half for each hour worked by an employee in excess of forty hours a week. There are exceptions for employees who are:

employed in a bona fide executive, administrative, or professional capacity . . . (. . . except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities.)

An employee may bring an action on behalf of himself or herself and other similarly situated people. See 29 U.S.C. § 216(b). Section 216 of Title 29 allows for an "opt-in" collective action, as opposed to Federal Rule of Civil Procedure 23 which has an opt-out provision. There are two requirements to proceed as a representative class action under § 216(a): (1) the plaintiffs must be "similarly situated"; and (2) all plaintiffs must affirmatively consent to be a member of the action by filing a written consent. See 29 U.S.C. § 216(b); Hoffmann-La Roche, Inc., 493 U.S. 165, 168 (1989); Pritchard v. Dent Wizard Int'l, 210 F.R.D. 591, 594 (S.D. Ohio 2002); Goldman v. Radioshack Corp., 2003 U.S. Dist. LEXIS 7611 (E.D. Pa. Apr. 17, 2003).

The Court retains discretion to authorize notice to similarly situated employees to inform them of the lawsuit and to give them an opportunity to participate and opt-in as plaintiffs. Hoffman-La Roche, 493 U.S. at 169. Before facilitating notice, the Court must consider whether the plaintiffs have demonstrated that the other employees are "similarly situated." Pritchard, 210 F.R.D. at 595. The FLSA does not define the term "similarly situated." However, the courts which have addressed the issue have generally adopted a two-step analysis: the first step is to occur at the outset of discovery, and second step is to occur after "all the opt-in forms have been received and discovery has concluded." Goldman, 2003 U.S. Dist. LEXIS 7611, at *20-21; see also Morisky v. Public Serv. Elec. Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J. 2000) (and cases cited therein). At the notice stage, the certification is conditional and by no means final. Plaintiff need only show that "his position is similar, not identical, to the positions held by the putative class members." Pritchard, 210 F.R.D. at 595 (citing Viciedo v. New Horizons Computer, Learning Center of Columbus, Ltd, No. 2:01-CV-250, slip. op. (S.D. Ohio Dec. 4, 2001) and Allen v. Marshall Field Co., 93 F.R.D. 438, 443 (N.D. Ill. 1982)). Authorized notice "need only be based on a modest factual showing." Pritchard, 210 F.R.D. at 596 (citing Severton v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991); see also Morisky, 111 F. Supp. 2d at 497 ("this determination is made using a fairly lenient standard, and typically results in `conditional certification' of a representative class" (quoting Thiessen v. General Elec. Capital Corp., 996 F. Supp. 1071, 1080 (D. Kan. 1998))). After discovery is complete, the trial court should more thoroughly consider the question of whether each member of the class is "similarly situated." Goldman, 2003 U.S. Dist LEXIS 7611, at *21; see also Morisky, 111 F. Supp. 2d at 497 ("[after discovery is complete,] the court has much more information on which to base its decision and, as a result, employs a stricter standard.")

The discovery taken in Ramsey v. Walmart, 1:02-CV-955, a related case pending in this Court, is similar to this case. Defendant argues that the Ramsey discovery is applicable and, therefore, this case is beyond the first step because significant discovery has already occurred in Ramsey. (Def.'s Br. at 7, 9.) Although it is true that the discovery taken in Ramsey can be used in this case, this case is still at its beginning and the Court has minimal evidence upon which to determine if the Plaintiffs or potential "opt-in" plaintiffs are similarly situated.

Defendant cites a recent Opinion by Magistrate Judge Greeley in Coleiro v. Spartan Stores, Inc., No. 2:02-CV-150 (W.D. Mich. Aug. 16, 2004), which found that "[t]he court cannot allow plaintiffs to convert [that] case to a collective action at [such a] late date." Id. at 2. However, Coleiro is distinguishable from the case at bar. In Coleiro, the original complaint was filed on September 30, 2002, the Opinion denying the Motion for Approval of Notice issued on August 16, 2004, discovery was to end on September 1, 2004, and trial was set for April 2005. In this case, the original complaint was filed on February 17, 2004, this Motion was filed on August 6, 2004, and a trial date has not yet been set. This Court finds that this case, unlike Coleiro, is still in the beginning stages and will apply the more lenient standard when considering whether putative plaintiffs are similarly situated. This Court will not address the merits of Defendant's argument that the Plaintiffs are exempt at this stage. See Goldman, 2003 U.S. Dist. LEXIS at *24-25 (citing Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178 (1974) ("In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits . . .").

To meet the burden for approval to notice, Plaintiffs must "make a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 238 (N.D.N.Y. 2002). In this case, the Court finds that Plaintiffs have sufficiently alleged a collective action under § 216(b) of the FLSA. This Court finds that materials submitted by the Plaintiffs in the form of the deposition testimony of Kim Comer, the affidavits of Kevin Arend and Sandra Farr, and the Notice of Consent of the other Plaintiffs, constitute a preliminary showing that Plaintiffs and potential plaintiffs, are similarly situated under the lenient standard applicable at this stage in the proceedings.

Plaintiffs alternatively seek approval of notice for all salaried assistant managers employed by Walmart in the last three years in the United States (excluding New Mexico), in Walmart's "Region 3", or in the State of Michigan. This Court will approve Notice to advise the salaried assistant managers employed by Walmart at any time in the past three years only within Walmart's "Region 3", i.e. the management region for Michigan, Northern Indiana and Northern Ohio. The Court will approve notice as to Region 3 because Defendant, itself, created Region 3 as an area distinct from other areas of the country. Furthermore, although individual Plaintiffs have worked in nine different states, it is unclear that this limited number of Plaintiffs would be able to adequately represent the interests of all potential future class members who choose to opt-in if notice were granted on a national level. Notwithstanding, should it be shown later that salaried assistant managers in Region 3 are similarly situated to other current Plaintiffs who represent states outside Region 3, the Court may then be justified in approving notification of salaried assistant managers in those states or regions. Therefore, this is a conditional certification subject to later review after completion of significant discovery. Later review may include Court action to either expand or limit the certification as appropriate.

An Order in accordance with this Opinion shall issue.