United States District Court, W.D. Washington, Seattle
SHARON ROZEBOOM and ANTHONY LAVALLEY, individually and on behalf of all other similarly situated individuals, Plaintiffs,
DIETZ & WATSON, INC.
Honorable Richard A. Jones, United States District Judge
matter comes before the Court on Plaintiffs' Motion for
Conditional Collective Action Certification and
Court-Authorized Notice. Dkt. # 20. Defendant opposes the
motion. Dkt. # 24.For the reasons that follow, the Court
GRANTS in part the motion.
& Watson, Inc. (“Defendant”) is “one of
the largest preparers of premium deli meats and artisan
cheeses[.]” Dkt. # 1 (Complaint) at ¶ 19. Named
Plaintiffs and the class they hope to represent were
Merchandisers for Defendant. Id. at ¶¶ 12,
14, 22. As Merchandisers, Plaintiffs primary job duties
included “stocking deli cases, clearing expired
products, preparing sales displays, arranging deli cases and
end caps according to specified planograms, and training
store sales associates in the proper handling and
presentation of Defendant's products.” Id.
at ¶ 23.
claim that they were expected to, and did, work more than
forty hours per work week. Id. at ¶¶
25-27. Plaintiffs claim that Defendant misclassified the
Merchandisers as exempt from overtime pay and therefore paid
them a salary that did not account for the overtime.
Id. at ¶ 29. In late 2016 or early 2017,
Defendant reclassified the Merchandisers and “began
paying [them] an hourly rate plus overtime premiums.”
Id. at ¶ 30.
filed suit under the Fair Labor Standards Act (FLSA) and
state laws to recover unpaid overtime wages for
themselves and others similarly situated for up to three
years prior to the filing of their claims. Id. at
FLSA generally requires an employer to pay its employees a
rate not less than time and a half their regular rate of pay
for all hours worked in excess of forty in one week. 29
U.S.C. § 207(a)(1). Employees may be exempt from
overtime requirements under certain circumstances defined by
the FLSA and its implementing regulations.
the FLSA, plaintiffs may institute a collective action on
behalf of themselves and “other employees similarly
situated” against an employer who violates the
FLSA's overtime requirements. 29 U.S.C. § 216(b). In
an FLSA collective action, any similarly situated employee
must opt-in to the case following notice, in contrast to
Federal Rule of Civil Procedure 23, wherein a class member
who does not wish to be bound by the judgment must opt out of
the case. See id.; Fed.R.Civ.P. 23. In addition,
FLSA collective actions are not subject to the numerosity,
commonality, and typicality rules of a class action suit
brought under Rule 23. Rather, the plaintiff need only show
that she is “similarly situated” to the other
members of the proposed class. 29 U.S.C. § 216(b);
see Morden v. T-Mobile USA, Inc., No. C05-2112RSM,
2006 WL 2620320, at *2 (W.D. Wash. Sept. 12, 2006). There is,
however, little circuit law defining “similarly
situated.” See Morden, 2006 WL 2620320, at *2.
the Ninth Circuit, district courts apply a two-tiered
approach to certification of a FLSA collective action.
See id. (citing cases). First, the district court
conducts an initial “notice stage” analysis of
whether plaintiffs are similarly situated to the proposed
class, and determines whether a collective action should be
certified for the purpose of sending notice of the action to
potential class members. Id. (citing Thiessen v.
Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th
Cir.2001)). Although the named plaintiffs bear the burden of
showing “substantial similarity” at the notice
stage, discovery has not yet occurred, and courts must rely
on the pleadings and affidavits submitted by the parties.
Bollinger v. Residential Capital, LLC, 761 F.Supp.2d
1114, 1119 (W.D. Wash. 2011). Because the “sole
consequence of conditional certification is the sending of
court-approved written notice to employees, ”
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75
(2013), little more is required than “substantial
allegations, supported by declarations or discovery, that the
putative class members were together the victims of a single
decision, policy, or plan and a showing that plaintiffs are
generally comparable to those they seek to represent, ”
Heath v. Google Inc., 215 F.Supp.3d 844, 851 (N.D.
Cal. 2016) (internal quotation marks omitted). The
“similarly situated” standard at this phase is
fairly lenient and typically results in certification.
Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D.
623, 627-28 (E.D. Cal. 2009) (citation omitted).
second stage generally occurs after the completion of
discovery. Randolph v. Centene Mgmt. Co., No.
C14-5730 BHS, 2015 WL 2062609, at * 3 (W.D. Wash. May 4,
2015). The party opposing collective certification may then
move for decertification, and the court engages in a more
searching review. Leuthold v. Destination Am., Inc.,
224 F.R.D. 462, 466-67 (N.D. Cal. 2004).
“misclassification” cases such as this one, where
the plaintiffs' theory is that defendant misclassified
them as exempt, the plaintiffs must show that they and the
putative class members performed similar job duties.
Kress, 264 F.R.D. at 629-30; Trinh v. JP Morgan
Chase & Co., No. 07-CV-1666 W(WMC), 2008 WL 1860161,
at *13 (S.D. Cal. Apr. 22, 2008). This is because the
Court's concern in such cases is “whether
plaintiffs' evidence indicates that the propriety of the
classification may be determined on a collective
basis[.]” Kress, 263 F.R.D. at 630. The nature
of an employee's job duties dictates whether he falls
under an exemption, and thus the similarities between
employees' duties dictates whether their claims should be
tried together. See Kress, 264 F.R.D. at 629-30;
Trinh, 2008 WL 1860161, at *13. Some courts have
also emphasized whether plaintiffs can show that they and the
putative class members fell under similar compensation
schemes, Trinh, 2008 WL 1860161, at *3;
Bollinger, 761 F.Supp.2d at 1119; or whether
plaintiffs have provided some indication that their claims
would rely on common evidence. See, e.g., Trinh,
2008 WL 1860161, at *5. But see Hensley v. Eppendorf N.
Am., Inc., 2014 WL 2566144, at *7 (S.D. Cal. June 6,
2014) (showing of common proof not necessary at the notice
stage where the court could infer its existence from the
evidence presented). Critically, plaintiffs need not
conclusively establish that collective action is proper,
because defendants will be free to revisit this issue at the
close of discovery. Kress, 264 F.R.D. at 630.
prove their case, Plaintiffs submitted four declarations.
Dkt. # 20-4. At this stage, quantity of declarations is not a
determinative factor in granting or denying a motion for
conditional certification. See Wilson v. Maxim Healthcare
Servs., Inc., No. C14-789RSL, 2014 WL 7340480, at *4
(W.D. Wash. Dec. 22, 2014) (noting that “[t]he general
rule for this Circuit is that ... [a] handful of declarations
may suffice” and granting conditional certification
based on four declarations across “three [of
defendant's] offices in two states.”) (internal
citation omitted); Sanchez v. Sephora USA, Inc., No.
11-03396 SBA, 2012 WL 2945753, at *3 (N.D. Cal. July 18,
2012) (granting conditional certification of a nationwide
collective action based on five declarations); Gilbert v.
Citigroup, Inc., No. 08-0385 SC, 2009 WL 424320, at *4
(N.D. Cal. Feb. 18, 2009) (granting conditional certification
of a nationwide collective action based on five
declarations); Leuthold v. Destination Am., Inc.,
224 F.R.D. 462, 468-69 (N.D. Cal. 2004) (granting conditional
certification based on three affidavits from named
plaintiffs). Neither is the use of “cookie
cutter” declarations. Randolph, 2015 WL
2062609, at *3 (“At this lenient ...