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Shumate v. Genesco, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 2, 2018

JULIA SHUMATE, on behalf of all others similarly situated, Plaintiff,



         Plaintiff, Julia Shumate, filed the present lawsuit against her former employer, Hat World, Inc., d/b/a Lids Sports Group (“Lids”), and its parent corporation, Genesco, Inc. (“Defendants”), alleging overtime violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the Ohio Minimum Fair Wage Standards Act, O.R.C. §§ 4111.01 and 4111.14 (“OMFWSA”), in the United States District Court for the Southern District of Ohio. The case was transferred here on October 4, 2017.

         In the present motion, Plaintiff seeks conditional certification of a collective action under the FLSA and approval for a notice to prospective members of the collective action to allow them the opportunity to opt-in to the case. Defendants oppose Plaintiff's requests. The court, having read and reviewed the parties' submissions and the applicable law, now GRANTS Plaintiff's Motion for Conditional Certification, Expedited Opt-In Discovery, and Court-Supervised Notice to Potential Plaintiffs.

         I. General Background

         Plaintiff was employed by Lids as a non-exempt store manager between December 2014 and June 2015 at Defendants' Lids Store located at Polaris Fashion Place, 1500 Polaris Park, Columbus, Ohio 43240. (Filing No. 28-2, Declaration of Julia Shumate (“Shumate Decl.”) ¶ 1). She was paid a fixed salary under the fluctuating work week (“FWW”) method of payment. (Filing No. 27, Am. Compl. ¶ 36). This method, described in 29 C.F.R. § 778.114, allows an employer to pay an employee who works a fluctuating, irregular work week a fixed weekly salary regardless of the hours worked whether they exceed or fall below 40 hours in a given work week. 29 C.F.R. § 778.114. It further permits the employer to pay an employee a minimum rate of one-half (not the typical one and one-half) his or her regular rate for overtime hours worked. Id. In her First Amended Complaint, Plaintiff alleges that in addition to overtime compensation, she and similarly situated store employees were paid bonuses in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the Ohio Minimum Fair Wage Standards Act, [1] O.R.C. §§ 4111.01 and 4111.14 (First Am. Compl. ¶ 35). Additionally, she alleges that all store managers were subject to the same employment, timekeeping, and payroll policies, practices and procedures. (Id. ¶ 28).

         Plaintiff seeks conditional certification of the following class:

All former and current non-exempt store managers of Genesco, Inc. and/or Hat World, Inc., d/b/a LIDS Sports Group who were paid overtime under the fluctuating workweek method at any time between February 2, 2014 and the present.

(Shumate Decl. ¶ 9).

         II. Discussion

         This motion was filed in the Southern District of Ohio before the case was transferred pursuant to 28 U.S.C. § 1404; consequently, the parties rely on Sixth Circuit law. This raises the question of whether Sixth Circuit or Seventh Circuit precedent applies to Plaintiff's motion. “Although the law of the transferor court continues to apply when a diversity case is transferred from one district court to another under § 1404(a), see Van Dusen v. Barrack, 376 U.S. 612, 639 [] (1964), ” the law of the transferee court generally applies to the interpretation of federal issues. McMasters v. United States, 260 F.3d 814, 819 (7th Cir. 2001). Accordingly, the court applies the law of the Seventh Circuit to Plaintiff's motion for conditional certification of her FLSA claim, and applies Ohio law to Plaintiff's OMFWSA claim.

         A. Conditional Certification

         Under the FLSA: “[N]o employer shall employ any of his employees who in any workweek is engaged in commerce . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Section 16(b) of the FLSA “gives employees the right to bring a private cause of action on their own behalf and on behalf of ‘other employees similarly situated' for specified violations of the FLSA. 29 U.S.C. § 216(b). A suit brought on behalf of other employees is known as a ‘collective action.'” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013) (quoting Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989)). Unlike a Rule 23 class action, potential class members in a collective action must affirmatively opt-in to be bound, while in a Rule 23 action they must opt out to not be bound. Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)); Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D. Ill. 2008).

         Because the FLSA does not specify how collective actions are to proceed, the management of these actions has been left to the discretion of the district courts. See Hoffman-LaRoche, 493 U.S. at 171-72. In this circuit, district courts generally apply a two-step inquiry in determining whether the FLSA claim should proceed as a collective action. “‘At the first stage, the court makes an initial determination whether notice should be sent to potential opt-in plaintiffs who may be similarly situated to the named plaintiff.'” Hudson v. Protech Sec. Grp., Inc., 237 F.Supp.3d 797, 799 (N.D. Ill. 2017) (quoting Steger v. Life Time Fitness, Inc., No. 14-6056, 2016 WL 6647922, at *1 (N.D. Ill. Nov. 10, 2016)); see also Genesis Healthcare Corp., 569 U.S. at 69 (“The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.”). To establish that the opt-in plaintiffs are similarly situated, the named plaintiff must make a modest factual showing that she and the potential plaintiffs are similarly situated. Williams v. Angie's List, Inc., 223 F.Supp.3d 779, 782 (S.D. Ind. 2016). In making a determination as to similarity, a plaintiff cannot rely solely on the allegations of her complaint. Molina v. First Line Solutions LLC, 566 F.Supp.2d 770, 786 (N.D. Ill. 2007). Instead, she must “‘provide some evidence in the form of affidavits, declarations, deposition testimony, or other documents to support the allegations that other similarly situated employees were subjected to a common policy that violated the law.” Nicks v. Koch Meat Co., Inc., 2017 WL 4122743, -- F.Supp.3d --, (N.D. Ill. Sept. 18, 2017) (quoting Pieksma v. Bridgeview Bank Mortg. Co., LLC, No. 15 C 7312, 2016 WL 7409909, at *1 (N.D. Ill.Dec. 22, 2016)). If a plaintiff makes this modest factual showing, then notice and the opportunity to opt-in to the action can be sent to the employees who are similarly situated to the named plaintiffs, and the action then proceeds through discovery as a collective action. Brickel v. Bradford-Scott Data Corp., 2010 WL 145348, at *2 (N.D. Ind. Jan. 11, 2010) (citing Ashley v. Lake County, 2007 WL 1549926, at *2 (N.D. Ind. May 24, 2007)).

         At the initial “notice stage, ” the court does not consider the merits of the named plaintiff's claims, determine credibility, or consider opposing evidence presented by a defendant. Bergman v. Kindred Healthcare, Inc., 949 F.Supp.2d 852, 855-56 (N.D. Ill. 2013) (“The court does not make merits determinations, weigh evidence, determine credibility, or specifically consider opposing evidence presented by a defendant.”); Nehmelman v. Penn. Nat'l Gaming, Inc., 822 F.Supp.2d 745, 751 (N.D. Ill. ...

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