Johnson v. Big Lots Stores, Inc.

Decision Date20 June 2008
Docket NumberCivil Action No. 05-6627.,Civil Action No. 04-3201.
Citation561 F.Supp.2d 567
PartiesJohn JOHNSON, et al. v. BIG LOTS STORES, INC.
CourtU.S. District Court — Eastern District of Louisiana

Philip Rohrer, Bohrer Law Firm, Baton Rouge, LA, John B. MacNeill, Kevin E. Gay, MacNeill & Buffmgton, PA, Flowood, MS, Michael A. Josephson, Fibich, Hampton & Leebron, LLP, Houston, TX, Michael Thomas Tusa, Jr., Peter Joseph Wanek, Andre Jude Lagarde, McCranie, Sistrunk, Metairie, LA, Sam M. Brand, Jr., Sam M. Brand, Jr., Attorney at Law, Jackson, MS, James C. Rather, Jr., McCranie, Sistrunk, Covington, LA, for John Johnson, et al.

Judy Y. Barrasso, Stephen H. Kupperman, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA, David A. Scott, Elizabeth K. Deardorff, Paul E. Hash, Rachel D. Ziolkowski, Jackson Lewis, LLP, Dallas, TX, James E. Davidson, John P. Gilligan, John J Krimm, Jr., John C. McDonald, Paul L. Bittner, Schottenstein Zox & Dunn Co., LPA, Columbus, OH, for Big Lots Stores, Inc.

Michael Thomas Tusa, Jr., Andre Jude Lagarde, James C. Rather, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, Philip Bohrer, Bohrer Law Firm, Baton Rouge, LA, for James O. Alford, III.

Judy Y. Barrasso, Stephen H. Kupperman, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA, Lawrence Boyd Mcalpine, Jr., Taylor, Porter, Brooks & Phillips, LLP, Baton Rouge, LA, Paul E. Hash, Rachel D. Ziolkowski, Jackson Lewis LLP, Dallas, TX, for Big Lots Stores, Inc.


SARAH S. VANCE, District Judge.

From May 7-14, 2008, the Court conducted a bench trial in this overtime pay and misclassification collective action brought under § 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). After considering all the evidence presented live at trial and deposition testimony that the Court reviewed after the live trial concluded, the Court determines this matter is not fit for adjudication as a nationwide collective action. For the following reasons, the Court DECERTIFIES this case as a collective action and DISMISSES WITHOUT PREJUDICE the claims of opt-in plaintiffs, leaving the original plaintiffs to pursue their claims individually.


Defendant Big Lots Stores, Inc. is a nationwide retailer of "closeout" and "overstock" merchandise. It operates approximately 1,400 stores in 46 states across the country. Big Lots sells consumer goods ranging from futons to food and utilizes second- and third-generation retail space. What was once a grocery or drug store may now be a Big Lots.

At each store, Big Lots typically employs a salaried store manager, at least one salaried assistant store manager (ASM), an hourly associate store manager, associate hourly employees such as cashiers and stockers, and an office manager or bookkeeper. Depending on a store location's size, sales volume, number of employees, and performance history, two ASMs and only one associate manager may be employed, or the store will employ only one ASM and two associate managers. Some stores also include furniture departments and employ a furniture sales manager. Big Lots classifies both store managers and ASMs as exempt executive employees for purposes of the overtime pay provisions of the FLSA.

Big Lots' formal description of the ASM job position states that ASMs are responsible for interviewing and hiring hourly associate employees, supervising the work of hourly associates, and providing for the safety of persons in the store and security of Big Lots' property. Depending on whether someone is an ASM for Merchandising or Operations, that individual is also responsible either for overseeing freight delivery and the unloading and stocking of merchandise known as the "Dock-to-Stock" (DTS) process, or supervising the work of hourly associates in the store and the cashiering operation, respectively. As discussed infra, there is significant variation among ASMs in terms of the duties that they perform and the hours they spend at work. But Big Lots stores are supposed to operate on a management model in which there is always a member of management in the store, known as the manager on duty, and in which the managers work in overlapping shifts. Big Lots' model management schedule provides that ASMs are to work a minimum of five, nine-hour shifts per week, opening and closing the store depending on the hours of their shifts.

On November 23, 2004, plaintiffs John Johnson and Robert Charles Burden sued Big Lots, asserting that it misclassified ASMs as executive employees and thereby unlawfully denied them overtime pay in violation of § 207(a)(1) of the FLSA. Plaintiffs styled their complaint as a collective action under § 216(b) of the FLSA and brought their overtime pay and misclassification claims on behalf of themselves and all other similarly situated individuals.1 (See R. Doc. 1.) Plaintiffs specifically contend that although their formal job descriptions include managerial responsibilities, their actual managerial duties were de minimis and did not meet the criteria for exempt executive employees. Plaintiffs assert that in reality they consistently work more than 40 hours per week and that they spend the vast majority of their time performing, under strict corporate guidelines, nonexempt tasks that have little to do with managing the store, such as unloading merchandise from delivery trucks, organizing storerooms, stocking merchandise on shelves, operating cash registers, and cleaning their respective store locations. Or as one plaintiff has put it, a Big Lots ASM is nothing more than a "glorified stocker." (Goodson Dep. at 44.)

Utilizing the two-stage certification approach employed by the majority of courts in determining whether to certify a case as a collective action under § 216(b) of the FLSA, the Court conditionally certified this matter as collective action on July 5, 2005. (R. Doc. 36.) The parties then sent notices to individuals employed by Big Lots as ASMs on or after November 23, 2001. In response, roughly 1,200 plaintiffs consented to join in this litigation as opt-in plaintiffs. The nationwide class of plaintiffs was later reduced to 936 current and former Big Lots ASMs.

A little over two years later on June 1, 2007, Big Lots moved to decertify the class. The parties had conducted discovery over the intervening two-year period. Big Lots based its initial motion to decertify on the depositions of 12 opt-in plaintiffs identified by plaintiffs' counsel and declarations that its counsel collected from members of the plaintiff class. Plaintiffs countered with declarations of their own, in which large majorities of plaintiffs averred that they spent the vast majority of their time completing nonexempt tasks. Further, the deposition testimony presented by Big Lots suggested strong similarities in job duties among those plaintiffs deposed before the decertification hearing. Based on the evidence before it at the time and in light of plaintiffs' claim that Big Lots maintained a de facto policy and practice of misclassifying the ASM job position, the Court denied Big Lots' motion to decertify. (R. Doc. 113.)

After the Court denied Big Lots' initial motion to decertify, the Court issued a scheduling order governing pretrial discovery and setting the trial date. As the case was proceeding as a nationwide collective action to be resolved on the basis of representative evidence, plaintiffs retained two experts to prepare and conduct a survey of all opt-in plaintiffs about their job duties as Big Lots ASMs. The Court limited the universe of fact witnesses whom each party would be permitted to depose to 40 per side and further limited each party to presenting the testimony of up to 20 of those fact witnesses at trial;

A nonjury trial in this matter began on May 7, 2008. The Court allotted 62 hours of total trial time for the parties to present their respective claims and defenses, 31 hours on the record to each side. Over the course of seven days, the Court heard 43 hours of live trial testimony and presentations from counsel. Each side called a full complement of 20 nonexpert witnesses, either live or by deposition. Big Lots called seven witnesses live and submitted depositions of 13 more, which were not counted against Big Lots' trial time. Big Lots' seven live witnesses included one of its executive vice presidents, Brad Waite; two district managers, Jeffrey Sites and Wade Kvapil, who were responsible for overseeing the operation of 15 stores each in Florida and Texas, respectively; and five assistant store managers who did not opt into this suit as plaintiffs ("non-opt-in ASMs"),2 Melanie Muirbrook, April Heinecke, David Lambeth, and Garret Borskey. Big Lots also offered the deposition testimony of the following witnesses: three additional non-opt-in ASMs, Renee Anderson, Brenda Farley, and Michelle Smaloewicz; and 10 opt-in plaintiffs, Judith Cassidy, Brian Chmiola, Kelly Foltz, Armando Garcia, Patty Hecker, Louis Kruger, Carlene Pospichel, Alina Ramos, Kesha Rochelle, and Elaine Zeringue.

The plaintiffs did not call any fact witnesses live at trial. Instead, they offered the deposition testimony of 20 individuals. Plaintiffs introduced the depositions of Big Lots' two corporate representatives designated under Federal Rule of Civil Procedure 30(b)(6), Bill Coney and Peter Schnorf; two district managers, Bruno Lijoi and Weldon Nicholson; and 16 opt-in plaintiffs, James Alford, Kelly Arciszewski, Ken Beck, George Christian, Chad De-Laune, Lydia Fabela, Sheila Gaston, Cooper Goodson, Jeff Hull, John Johnson, John Kacmarynski, Chris Leonard, Matt McCloy, Henry Potts, and Susan Schwartz.3 The parties also submitted more than a thousand exhibits, consisting of corporate job descriptions, store and employee manuals, payroll records, declarations prepared by opt-in plaintiffs, survey responses completed by opt-in plaintiffs, and employee personnel records.

Both plainti...

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