DaRosa v. Speedway LLC
| Decision Date | 30 August 2021 |
| Docket Number | CIVIL ACTION NO. 19-10791-RGS |
| Citation | 557 F.Supp.3d 315 |
| Parties | Joseph DAROSA, Wills Clervil, Alka Davis, Martin Schutzius, and Daniel Schulz, on behalf of themselves and similarly situated employees v. SPEEDWAY LLC |
| Court | U.S. District Court — District of Massachusetts |
A. Andrew Santillo, Pro Hac Vice, Mark Gottesfeld, Pro Hac Vice, Peter Winebrake, Pro Hac Vice, Winebrake & Santillo, LLC, Dresher, PA, Harold L. Lichten, Anastasia Doherty, Michelle Cassorla, Lichten & Liss-Riordan, P.C., Boston, MA, for Joseph DaRosa.
Harold L. Lichten, Lichten & Liss-Riordan, P.C., Boston, MA, for Alka Davis, Martin Schutzius, Daniel Schulz.
Kristen A. Page, Pro Hac Vice, William C. Martucci, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Kansas City, MO, Alan Y. Wong, Stephen I. Hansen, Shook Hardy & Bacon LLP, Boston, MA, for Speedway LLC.
STEARNS, D.J.
Plaintiffs Joseph DaRosa, Wills Clervil, Alka Davis, Martin Schutzius, and Daniel Schulz, former General Managers (GMs) of convenience stores operated by defendant Speedway LLC, allege that they were misclassified as exempt salaried employees to their financial disadvantage. They seek to represent other similarly situated employees in a national collective pursuant to the Fair Labor Standards Act (FLSA), and statewide classes under the wage laws of Massachusetts, New York, Illinois, Pennsylvania, and New Jersey. Before the court are plaintiffs’ motion for class certification and defendant's motion to decertify the FLSA collective.
Speedway is a national company that operates thousands of convenience stores. Speedway categorizes the "complexity" of individual stores on a scale of Level 1 to Level 6. The scale is based on the store's sales volume, aggregate labor hours, turnover/employment, and other operational markers. Level 1 stores have the lowest sales volume, labor hours, and number of employees, while Level 6 stores are at the opposite end of the spectrum. The stores are grouped into districts and regions based on their geographic location. A District Manager (DM) typically oversees a dozen stores. DMs report to a Speedway Regional Manager.
In April of 2019, DaRosa singly filed the original Complaint as the proposed lead plaintiff. As the GM of a Level 2 Speedway store in Massachusetts, DaRosa claims that he was misclassified as an exempt salaried employee. He alleges that he primarily worked alone in the store or with one other employee and spent most of his time performing non-managerial tasks such as assisting customers, operating the cash register, stocking shelves, maintaining inventory, and cleaning. DaRosa avers that he often worked more than 40 hours a week, and that, had he been properly classified as a non-exempt employee, he would have received overtime pay for the hours over forty that he worked in each week. He asserts claims under the FLSA and the Massachusetts Minimum Fair Wage Act. DaRosa also alleges that all GMs in Level 1 to Level 51 Speedway stores are similarly misclassified under the same employment practices.
In February of 2020, this court conditionally certified an FLSA collective of Speedway GMs in level 1 to level 5 stores. See Dkt # 47. An Amended Complaint, filed in August of 2020, added lead plaintiffs and state wage law claims involving New York (Davis), Illinois (Schutzius), Pennsylvania (Schulz), and New Jersey (Clervil2 ), while asserting the identical set of factual allegations as did DaRosa. In response to a notice sent to potential members, 1,268 GMs from Level 1 to Level 5 stores in 25 states opted into the FLSA collective.
The parties engaged in substantial representative class discovery. One hundred eight collective members provided testimony: 45 members submitted sworn declarations,3 43 members responded to Speedway's interrogatories, and 19 members (including four of the five lead plaintiffs) sat for depositions. The parties now cross-move on the issue of final certification based on this record.
Under the FLSA, an action against an employer to recover unpaid overtime wages 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). Potential plaintiffs must affirmatively opt in to join an FLSA collective action. Id.
Courts in this Circuit have adopted a two-tiered approach to the certification of a collective in an FLSA action. See Kane v. Gage Merch. Servs., Inc. , 138 F. Supp. 2d 212, 214 (D. Mass. 2001). At the preliminary "notice stage," the court applies a "fairly lenient" standard to plaintiff's "substantial allegations that the putative class members were subject to a single decision, policy, or plan that violated the law" to conditionally certify a group of potential members who will receive notice. Id. If a collective is conditionally certified, as was the case here, the defendant may move to decertify the collective after the completion of class discovery. At this second stage, the court makes a "factual determination" as to whether the employees who have opted into the collective are actually similarly situated. Norceide v. Cambridge Health All. , 2014 WL 775453, at *3 (D. Mass. Feb. 24, 2014) (citation omitted). In the factual "similarly situated" analysis, the court considers factors including "(1) the disparate factual and employment settings – e.g., whether plaintiffs were employed in the same corporate department, division, and location; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural concerns." Id. (citation omitted).
The substantive dispute – while not at issue here – informs the "similarly situated" analysis. "The FLSA, in general terms, requires that an employee be paid a minimum hourly wage and overtime compensation if he or she works in excess of forty hours in a work week." Selfridge v. Jama , 172 F. Supp. 3d 397, 425 (D. Mass. 2016), citing 29 U.S.C. §§ 206, 207. Employees who are "employed in a bona fide executive ... capacity" are exempt from the overtime payment requirement. 29 U.S.C. § 213 (a)(1).
Pursuant to regulations issued by the Secretary of Labor, an employer seeking to establish that an employee is an exempted "executive" must show: (1) the employee's salary is at least [$684] per week, (2) the employee's "primary duty" is management, (3) the employee "customarily and regularly directs the work of two or more other employees," and (4) the employee "has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight."
Marzuq v. Cadete Enters., Inc. , 807 F.3d 431, 435 (1st Cir. 2015) (citation omitted).
"Typical management duties include interviewing, training, directing work, maintaining records, appraising work performance, handling employee complaints, and apportioning work." Rooney v. Town of Groton , 577 F. Supp. 2d 513, 526 (D. Mass. 2008) ; see also 29 C.F.R. § 541.102.
The term "primary duty" means the principal, main, major or most important duty that the employee performs.... Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.
Marzuq , 807 F.3d at 436, quoting 29 C.F.R. § 541.700.
Plaintiffs contend that they are all subject to the same Speedway "one size fits all" staffing policy – that is, the GM of any store allocated labor hours equivalent to two full-time employees is classified as exempt. When a store is short-staffed, as is often the case, see, e.g. , Creller Dep. (dkt # 127-9) at 108; Uddin Dep. (dkt # 127-18) at 35, the GM is expected to take up the slack, working well over forty hours per week. The testimony of the representative opt-ins reflects that the members of the collective worked on average 50 hours or more per week.
Plaintiffs also maintain that, contrary to Speedway's job description, much of their work is not managerial. Of their typical working hours, 60% to 100% (with most of the representatives reporting 90% or more) are spent on the same tasks as those assigned to hourly employees: helping customers and working the cash register; stocking shelves and coolers; scanning products; taking out the trash; making food in the food prep area; sweeping the parking lots; and cleaning the store, bathrooms, floors, food prep area, and the gasoline pumps, with time at the cash register soaking up most of the day. See, e.g. , Baser Dep. (dkt # 127-5) at 30 (); Uddin Dep. at 60 (). Members of the GM collective also reported that most of their hours were spent working either alone or with one other employee.
Plaintiffs paint Speedway GMs as having limited discretion in performing managerial tasks. DMs determine the number of weekly labor hours assigned to each store from which GMs are not permitted to deviate. See, e.g. , Dimsey Dep. (dkt # 127-10) at 8 (). GMs cannot independently hire or fire employees. See, e.g. , id. at 34-35 (); Schulz Dep. (dkt # 123-8) at 193-194 (); Mercado Dep. (dkt # 127-14) at 43-44 (); Dimsey Dep. at...
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