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Rozeboom v. Dietz & Watson Inc.

United States District Court, W.D. Washington, Seattle

May 17, 2018

SHARON ROZEBOOM and ANTHONY LAVALLEY, individually and on behalf of all other similarly situated individuals, Plaintiffs,
v.
DIETZ & WATSON, INC.

          ORDER

          Honorable Richard A. Jones, United States District Judge

         This 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.[1]For the reasons that follow, the Court GRANTS in part the motion.

         I. BACKGROUND

         Dietz & 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.

         Plaintiffs 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.

         Plaintiffs filed suit under the Fair Labor Standards Act (FLSA) and state laws[2] 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 ¶ 57.

         II. LEGAL STANDARD

         The 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.

         Under 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.

         Within 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).

         The 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).

         III. DISCUSSION

         In “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.

         To 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 ...


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