United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
Keith P. Ellison, United States District Court Judge.
before the Court is Plaintiffs' Motion to Conditionally
Certify Collective Action and to Approve and Facilitate
Notice to Similarly Situated Employees (the
"Certification Motion.") (Doc. No. 42.) Plaintiffs
ask the Court to conditionally certify a nationwide class and
allow for notice to be distributed to the potential opt-ins
in the present lawsuit. Defendant asks the Court to deny the
brought this Fair Labor Standards Act ("FLSA") case
as a putative class action on behalf of themselves and other
employees of Defendant Stage Stores, Inc. or Specialty
Retailers, Inc. d/b/a Peebles
("Defendant.") (Doc. No. 42 at 8.) Plaintiffs were
employed as Store Managers, working in eight different stores
across four states at various times. Id. Defendant
classified Store Managers as exempt from the FLSA's
overtime provisions at all times relevant to this lawsuit.
Id. Plaintiffs argue that this exempt classification
violated the FLSA because they spent "the majority of
their workdays performing non-exempt duties such as selling
merchandise; working on the sales floor; restocking products;
marking down sale items; keeping clothing organized;
operating the register; and other general customer service
duties, working on assignments provided by corporate; and
filling in for hourly associates." Id.
Plaintiffs argue that they are similarly situated to each
other as well as members of the potential class because (1)
they were all subject to the same uniform policy regarding
compensation, (2) the job description for Store Managers is
the same regardless of store location or size, and (3) Store
Managers had similar "customer service, sales, and
operations job duties," (Doc. No. 42 at 8, 11-12.)
Plaintiffs support their contentions with declarations from
each of the potential class representatives, as well as
fifteen uniform job postings, and deposition testimony of
Defendant's corporate representative. (Doc. No. 42 at 8;
Doc. No. 82 at 7.) When deposed by Plaintiffs,
Defendant's corporate representative admitted that the
variations that existed between store manager positions in
various stores did not affect whether the manager was
considered exempt. (Doc. No. 82 at 18.)
argues that the Court should deny the Certification Motion.
Defendant claims that nationwide certification is
inappropriate because many issues would need to be
individually determined, and the only company-wide policy
applicable to Plaintiffs is an official policy which is
legal. (Doc. No. 44 at 25.) Defendant supports its position
by comparing the declarations and depositions of Plaintiffs
with the deposition of current Store Manager Holly Watts and
the declarations of eleven current Store Managers. (Doc. No.
80 at 7.)
also opposes notification of some potential class members on
the basis that they may be bound to individually arbitrate
their claims. (Doc. No. 44 at 17.) Defendant states that 16
members of the proposed putative class have arbitration
agreements. Id. Plaintiffs do not challenge the
validity of these arbitration agreements, but rather argue
that arbitration concerns should not be addressed at this
stage of litigation. (Doc. No. 51 at 8.)
Fair Labor Standards Act allows employees to sue an employer
for violations of the Act's overtime provisions. Suits to
recover overtime pay "may be maintained against any
employer ... by any one or more employees for aid on behalf
of himself or themselves and other employees similarly
situated." 29 U.S.C. § 216(b).
determine whether employees are "similarly
situated" under § 216(b), courts in the Fifth
Circuit look to the two-step Lusardi approach.
See e.g., Walker v. Hongua Am., LLC, 870 F.Supp.2d
462, 465 (S.D. Tex. 2012). At the first step of the
Lusardi approach, courts must decide whether notice
of the action should be given to potential class members.
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14
(5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The
court's decision at this stage is made using a
"fairly lenient standard, [which] typically results in
'conditional certification' of a representative
class." Id. at 1214; see also Tolentino v.
C & J Spec-Rent Servs. Inc., 715 F.Supp.2d 642, 647
(S.D. Tex. 2010) ("The remedial nature of the FLSA and
§ 216 militate strongly in favor of allowing cases to
proceed collectively."). A plaintiff may proceed
collective:y only if the challenged conduct is a generally
applicable rule, policy, or practice. McKnight v.
D.Houston, Inc., 756 F.Supp.2d 794, 801 (S.D. Tex. 2010)
(quoting England v. New Century Fin. Corp., 370
F.Supp.2d 504, 507 (M.D. La. 2005)). Therefore, conditional
certification should be denied when the action arises from
circumstances purely personal to the plaintiff. Id.
order to obtain conditional certification, the plaintiff must
make a "minimal showing" that: (1) there is a
reasonable basis for crediting the assertions that aggrieved
individuals exist, (2) those aggrieved individuals are
similarly situated to the plaintiff in relevant respects
given the claims and defenses asserted. Aguirre v. SBC
Commc'ns, Inc., No. H-05-3198, 2006 WL 964554, at *6
(S.D. Tex. April 11, 2006). With regard to the second factor,
"the relevant inquiry is whether the potential class
members performed the same basic tasks and were subject to
the same pay practices." Tice v. AOC Senior Home
Health Corp., 826 F.Supp.2d 990, 995-96 (E.D. Tex.
2011). In making this assessment, "the court need not
find uniformity in each and every aspect of employment to
determine that a class of employees is similarly
situated." Jones v. SuperMedia Inc., 281 F.R.D.
282, 288 (N.D. Tex. 2012).
Fifth Circuit has held that in a FLSA class action, where an
employee has entered into a valid arbitration agreement,
"it is error for a district court to order notice to be
sent to that employee as part of any sort of
certification." In re JPMorgan Chase & Co.,
916 F.3d 494, 503 (5th Cir. 2019).