United States District Court, S.D. Indiana, Indianapolis Division
JULIA SHUMATE, on behalf of all others similarly situated, Plaintiff,
GENESCO, INC., HAT WORLD, INC. d/b/a LIDS SPORTS GROUP, Defendants.
ENTRY ON PLAINTIFF'S MOTION FOR CONDITIONAL
CERTIFICATION, EXPEDITED OPT-IN DISCOVERY, AND
COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN
RICHARD L. YOUNG, JUDGE
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.
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.
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,  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).
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).
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.
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).
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,
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. ...