Levine v. Vitamin Cottage Nat. Food Mkts.
| Docket Number | Civil Action 20-cv-00261-STV |
| Decision Date | 25 May 2023 |
| Parties | MICHAEL LEVINE, individually and on behalf of all others similarly situated, Plaintiff, v. VITAMIN COTTAGE NATURAL FOOD MARKETS, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant Natural Grocers' Motion to Decertify (the “Motion to Decertify”) [#223] and Plaintiff's Motion for Class Certification (the “Motion to Certify”) [#261] (collectively, the “Motions”). The Motions are before the Court on the Parties' consent to have a United States magistrate judge conduct all proceedings in this action and to order the entry of a final judgment. [##15; 16] This Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law and has determined that oral argument would not materially assist in the disposition of the instant Motions. For the following reasons, the Motion to Decertify is GRANTED and the Motion to Certify is DENIED.
Defendant is a Colorado corporation that owns and operates more than 150 grocery stores in nineteen states. [#17 at ¶¶ 14-15] Defendant employs more than 3,000 people across the United States, including dozens of Assistant Store Managers (“ASMs”) at its retail stores. [Id. at ¶ 16] Defendant classifies all ASMs as exempt both from federal and state overtime requirements. [Id. at ¶¶ 1, 4]
Plaintiff Michael Levine was employed as an ASM in a store located in Highlands Ranch, Colorado, from approximately March 2018 to April 2019. [Id. at ¶ 10] Mr. Levine, on behalf of himself and others similarly situation, filed the instant suit on January 31, 2020. [#1] The operative Complaint alleges that Natural Grocers violated the Fair Labor Standards Act (“FLSA”) and the Colorado Wage Claim Act (“CWCA”) by improperly classifying Levine and other ASMs as exempt employees and denying them overtime.[1][See generally #17]
On November 6, 2020, the Court granted Mr. Levine's Motion for Conditional Certification [#41], and conditionally certified the following collective for the purposes of Mr. Levine's FLSA claims:
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.
[Id. at 11] On November 20, 2020, the Court approved the parties' proposed Notice and Consent to Join forms. [#45] At the close of the notice period, 158 individuals had filed Consent to Join forms.[2] [See #104] On September 27, 2021, this Court ordered that 56 of the opt-in plaintiffs' claims must be resolved through arbitration proceedings and stayed those opt-in plaintiffs' claims.[3] [#142] On December 7, 2023, after the close of discovery, Defendant filed the Motion to Decertify [#223], arguing that discovery established that the opt-ins and the named Plaintiff are not similarly situated. Plaintiff has responded to the Motion to Decertify [#243] and Defendant has replied [#255]. On February 22, 2023, Plaintiff filed the Motion to Certify, which seeks to certify a class of ASMs under Federal Rule of Civil Procedure 23 for the purposes of Plaintiff's state-law claims. [#261] Defendant has responded to the Motion to Certify [#266][4] and Plaintiff has replied [#269].
Section 216(b) of the FLSA authorizes private individuals to recover damages for violations of FLSA's minimum wage and overtime provisions. See 29 U.S.C. § 216(b); Brayman v. KeyPoint Gov't Sols., Inc., 595 F.Supp.3d 983, 992 (D. Colo. 2022); Norwood v. WBS, Inc., No. 15-cv-00622-MSK-KMT, 2016 WL 7666525, at *1 (D. Colo. Sept. 29, 2016). Section 216(b) states that: “An action to recover the liability [for unpaid overtime compensation, retaliation and liquidated damages] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “The FLSA thus provides plaintiffs the opportunity to proceed collectively, which allows ‘plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.'” Brayman, 595 F.Supp.3d at 992 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 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. See Norwood, 2016 WL 7666525, at *1.
A FLSA collective action may only be maintained by and among “similarly situated” employees. See Id. While neither the FLSA nor controlling caselaw has defined the phrase “similarly situated,” the Tenth Circuit has approved a two-step “ad hoc” analysis governing that determination.[5] See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-05 (10th Cir. 2001); Brayman, 595 F.Supp.3d at 992. “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.'” Norwood, 2016 WL 7666525, at *1 (quoting Thiessen, 267 F.3d at 1102). 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 factual disputes, 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 (quoting Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 679 (D. Kan. 2004)); see also Young v. Dollar Tree Stores, Inc., No. 11-cv-01840-REB-MJW, 2012 WL 3705005, at *2 (D. Colo. Aug. 24, 2012) ().
After the completion of discovery, the second, or “decertification,” stage occurs- often prompted by a motion to decertify. See Norwood, 2016 WL 7666525, at *1; Coldwell v. RiteCorp Env't Prop. Sols., No. 16-CV-01998-NYW, 2017 WL 4856861, at *3 (D. Colo. July 20, 2017). During the decertification stage, the court applies a much stricter standard to determine whether class members are similarly situated. See Norwood, 2016 WL 7666525, at *1. The court reviews several factors at the decertification stage, including: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Thiessen, 267 F.3d at 1102-03. Plaintiffs bear the burden of establishing that they are similarly situated. Brayman, 595 F.Supp.3d at 992 (citing Coldwell, 2017 WL 4856861, at *3).
Plaintiff's FLSA claim alleges that ASMs are misclassified as exempt and improperly denied overtime pay. [#17 at ¶¶ 47-53] “In order to determine whether members of the class are similarly situated [in the context of a misclassification case], the Court must consider the salient factors in an exemption analysis.” Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088, 1094 (D. Kan. 2012). Two specific exemptions are at issue in this case.
First, under the Executive Exemption, the FLSA exempts a person employed “in a bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1). Under the Department of Labor regulations, an employee qualifies for the executive exemption if the employee: (1) meets a specific weekly salary threshold; (2) has a primary duty of management; (3) customarily and regularly directs two or more employees; and (4) has 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. 29 C.F.R. § 541.100(a)(1)-(4). Here, the second, third, and fourth criteria are in dispute. [See, e.g., ##223 at 44-49; 244 at 3-10]
Regarding the second criterion-that the employee have the “primary duty of management”-a Department of Labor regulation provides the following illustrative list of management activities:
[I]nterviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102. Another regulation clarifies that the “term ‘primary duty' means the principal main, major or most important duty that the employee performs,” to be determined “based on all the facts in a particular case, with the major...
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