Levine v. Vitamin Cottage Nat. Food Markets Inc.

• Decision Date: 06 November 2020
• Docket Number: Civil Action No. 20-cv-261-STV
• Citation: Levine v. Vitamin Cottage Nat. Food Markets Inc., Civil Action No. 20-cv-261-STV (D. Colo. Nov 06, 2020)
• Parties: MICHAEL LEVINE, individually and on behalf of all others similarly situated, Plaintiff, v. VITAMIN COTTAGE NATURAL FOOD MARKETS INC., doing business as Natural Grocers Defendant.
• Court: U.S. District Court — District of Colorado

MICHAEL LEVINE, individually and on behalf of allothers similarly situated, Plaintiff, v. VITAMIN COTTAGE NATURAL FOOD MARKETS INC.,doing business as Natural GrocersDefendant.

Civil Action No. 20-cv-261-STV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 6, 2020

ORDER

Magistrate Judge Scott T. Varholak

This matter comes before the Court on PlaintiffMichael Levine's Omnibus Motion and Memorandum of Law for Conditional Certification and Court-Authorized Notice (the "Motion").[#21]DefendantVitamin Cottage Natural Food Markets, Inc.("Natural Grocers") opposes the Motion [#33], and Plaintiff has filed a reply [#34].The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment.[##15, 16]This Court has carefully considered the Motion and related briefing, the entire case file, the applicable case law, and the arguments made by the parties at the October 8, 2020 hearing on the Motion[#40].For the following reasons, the CourtGRANTS the Motion.

I.BACKGROUND¹

Natural Grocers is a Colorado corporation that owns and operates more than 150 grocery stores in nineteen states.[#17 at ¶¶ 14-15]PlaintiffMichael Levine was employed as an Assistant Store Manager ("ASM") in a store located in Highlands Ranch, Colorado, from approximately March 2018 to April 2019.[Id.at ¶ 10] As an ASM, Levine worked over 40 hours in a workweek and/or 12 hours in a day and, on average, worked between 50 to 60 hours per week.[Id.at ¶¶ 11, 30]

Natural Grocers employs more than 3,000 people across the United States, including dozens of ASMs at its retail stores.[Id.at ¶ 16] According to the operative Complaint, "Natural Grocers maintained control, oversight, and direction over [Levine] and similarly situated employees, including with respect to the timekeeping, payroll, and other employment practices that applied to them."[Id.at ¶ 18]"Natural Grocers applies the same employment policies, practices, and procedures to all ASMs at all of its stores, including policies, practices, and procedures with respect to the payment of overtime compensation."[Id.at ¶ 19]

"The primary job duties of [Levine] and the [ASMs] are uniform throughout [Natural Grocers'] stores; they are subject to the same corporately-derived policies and procedures."[Id.at ¶ 48] These primary duties were routine tasks, including helping customers, moving freight, stocking shelves, building displays, counting inventory, and cleaning the store.[Id.at ¶ 32] These duties were the same or similar to tasks performed by hourly, non-exempt employees.[Id.at ¶ 33] Levine and other ASMsprimary duties did not include hiring, firing, making employment decisions, scheduling, or disciplining other employees.[Id.at ¶ 34]

Levine alleges that Natural Grocers violated the Fair Labor Standards Act("FLSA") and the Colorado Wage Claim Act ("CWCA") by improperly classifying him and other ASMs as exempt employees.[See generally #17] Levine filed the instant suit on January 31, 2020.[#1] Levine filed the instant Motion for Conditional Certification on April 22, 2020.[#21]

In addition to Levine as the named Plaintiff, six other individuals have consented to join in this action.[##6-1, 35-1] Levine and five of the individuals who have consented to this action have filed declarations in support of the Motion for Conditional Certification.[##21-2; 21-3; 21-4; 21-5; 21-6; 30-1] In these declarations, the individuals detail similar experiences as ASMs working for Natural Grocers.[Id.]

Specifically, each of the individuals notes that ASMs worked at least 45 hours per week.[Id.]Each of these individuals worked between 45 and 55 hours per week.[Id.]Each of the individuals notes that the stores were generally busy and they were not always able to take an uninterrupted, 30-minute lunch break.[Id.]Each of these individuals used the same time-keeping program called Ulti-Pro.[Id.]

According to the declarations, each of the individual's primary duties included helping customers, moving freight, stocking shelves, building displays, counting inventory, cleaning the store, and otherwise standing in as a cashier, stocker, or other hourly worker.[Id.]These individuals spent approximately 80-90 percent of their time performing these tasks.[Id.]According to their declarations, Natural Grocers closely controlled each of these individual's job duties and has extensive policies, procedures,and work rules for how ASMs must perform their duties.[Id.]Many of these policies were set forth in Natural Grocers' employee handbook.[Id.]None of these individuals had the authority to hire, fire, discipline, or promote other employees, or set other employees' rate of pay.[Id.]

Levine seeks conditional certification of the following class:

All current and former "Assistant Store Managers" who worked for Natural Grocers in the United States at any time on or after January 31, 2017 to the present, and who were classified as exempt from overtime compensation.

[#21 at 4]

II.STANDARD OF REVIEW

Section 216(b) of the Fair Labor Standards Act("FLSA") provides the exclusive means of bringing class-wide claims to redress alleged violations of the FLSA.See29 U.S.C. § 216(b);Norwood v. WBS, Inc., No. 15-cv-00622-MSK-KMT, 2016 WL 7666525, at *1(D. Colo.Sept. 29, 2016).Contrary to the procedures governing a class action under Rule 23, plaintiffs who wish to participate in a FLSA collective action must opt in to the action.SeeNorwood, 2016 WL 7666525, at *1.

An FLSA collective action may only be maintained by and among "similarly situated" employees.Id.The Tenth Circuit has adopted a two-step analysis governing that determination.Id."At the initial 'notice stage,'the trial court must determine whether plaintiffs have made 'substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'"Id.(quotingThiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102(10th Cir.2001)).The court makes this initial determination relying upon the allegations in the complaint and any supporting affidavits filed by the plaintiffs.Id."[T]he court does not weigh evidence, resolve factualdisputes, or rule on the merits of plaintiffs' claims" during the notice stage.Koehler v. Freightquote.com, Inc., 93 F. Supp. 3d 1257, 1263(D. Kan.2015)(quotation omitted).Certification at step one is conditional, "and the standard of proof 'is a lenient one that typically results in class certification,' allowing notice to be sent to the putative class members and discovery to be undertaken."Norwood, 2016 WL 7666525, at *1(quotingBrown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 679(D. Kan.2004));see alsoYoung v. Dollar Tree Stores, Inc., No. 11-cv-01840-REB-MJW, 2012 WL 3705005, at *2(D. Colo.Aug. 24, 2012)(describing the conditional certification burden as "minimal").

After the completion of discovery, the second, or "decertification," stage occurs.Norwood, 2016 WL 7666525, at *1.During the decertification stage, the court applies a much stricter standard to determine whether class members are similarly situated.Seeid."In making that determination, the court must evaluate, inter alia, 'the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made any required filings before instituting suit.'"Id.(quotingBrown, 222 F.R.D. at 679)).

Natural Grocers argues that some courts apply a more rigorous standard at the initial stage when significant discovery has already occurred, and that such a standard should apply here because the parties have engaged in substantial discovery.[#33 at 16] But "courts within the Tenth Circuit have consistently declined invitations to proceed directly to the more rigorous second stage analysis," even where the parties have engaged in substantial discovery.Smith v. Pizza Hut, Inc., No. 09-cv-01632-CMA-BNB, 2012 WL 1414325, at *4(D. Colo.Apr. 21, 2012)(collecting cases);see alsoPack v.Investools, Inc., No. 09-cv-1042, 2011 WL 3651135, at *3(D. UtahAug. 18, 2011)(declining to apply the second stage analysis, even though defendant had provided nearly 9,000 documents and responded to plaintiff's interrogatories and requests for admissions);Gieseke v. First Horizon Home Loan Corp., 408 F. Supp. 2d 1164, 1166-67(D. Kan.2006)(finding that bypassing the first stage of class certification was inappropriate even though the parties had taken multiple depositions and the defendant had produced almost 6,000 documents).Accordingly, the Court will consider whether Levine has made substantial allegations that the putative class members are similarly situated, applying the minimal burden of proof required at stage one.SeeNorwood, 2016 WL 7666525, at *1.

III.ANALYSIS

The parties disagree with respect to whether Levine has made substantial allegations that the putative class is similarly situated.[See generally ##21, 33, 34] In the event the Court concludes that Levine has satisfied his stage one burden of proof, Natural Grocers nevertheless argues that the proposed notice is not fair or accurate.The Court addresses each issue in turn below.

A.Whether Levine has made substantial allegations that the putative class is similarly situated

As discussed above, at this initial notice stage, Levine need only assert "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan."Thiessen, 267 F.3d at 1102.Levine alleges that Natural Grocers violated the FLSA by improperly classifying him and other ASMs as exempt employees, enabling Natural Grocers to withhold overtime wages due to themfor working over 40 hours a week.[See generally #17] Natural Grocers makes several challenges to conditional...