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Evans v. Lowe's Home Centers

May 18, 2006

BARBARA EVANS AND RAYMOND J. BERRY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
LOWE'S HOME CENTERS, INC., DEFENDANT.



The opinion of the court was delivered by: A. Richard Captuo United States District Judge

JUDGE CAPUTO

MEMORANDUM

Before me is Plaintiffs' Motion for Class Certification (Doc. 179), Defendant's Brief In Opposition (Doc. 210) and Plaintiffs' Reply Brief (Doc. 218). For the following reasons, Plaintiffs' motion will be denied in part and granted in part.

PROCEDURAL HISTORY

Plaintiffs filed a complaint styled Class Action Complaint (Doc. 1) in which they allege that Defendant failed to pay appropriate overtime wages to Department Managers ("DMs") and Assistant Department Managers ("ADMs"). Count I of the Complaint seeks relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. Plaintiffs pursue the FLSA claim on behalf of those titled employees who work or worked in Defendant Lowe's Home Centers, Inc.'s ("Lowe's") thirty-six stores located in the Commonwealth of Pennsylvania, and they seek to do so as a collective action under the FLSA's class opt-in provision. 29 U.S.C. § 216(b). Count II of the Complaint seeks relief under the Pennsylvania Minimum Wage Act ("PMWA"), 43 P.S. §§ 333.101-115. Plaintiffs pursue Count II as to the same employees, as a traditional class action under Federal Rule of Civil Procedure 23, and assert that supplemental jurisdiction exists under 28 U.S.C. § 1367.

I denied Defendant's Motion for Summary Judgment in a Memorandum Opinion and Order dated April 29, 2004. (Doc. 81.) I conditionally certified the class of DMs and ADMs of Defendant's stores in the Commonwealth of Pennsylvania under the FLSA, 29 U.S.C. § 216(b) on June 17, 2004. (Doc.90.) I deferred ruling on the Rule 23 aspect of Plaintiffs' motion. I now address class certification of PMWA and FLSA opt-in members who seek to join Plaintiffs' proposed Class.

DISCUSSION

Plaintiffs Barbara Evans, Raymond J. Berry, Scott McClellan, Andy Butler, Brian Diehl, Mark Kirby, Jacqueline Anselmi, Greg Steffee and Mike Miller, are nine current and former DMs or ADMs employed in Defendant Lowe's Pennsylvania stores. (Doc. 180-1 at 7.) Plaintiffs seek to represent the following class:

All individuals who, since March 11, 2000, have been employed in Defendant's Pennsylvania stores as DMs or ADMs and were compensated for overtime work based on Defendant's Salaried Plus Overtime Eligible Compensation Plan ("Plan"). ("Class") (Id.) Plaintiffs report that as of July 2004, the purported Class consisted of 1,816 members of which 499 individuals joined Plaintiffs' FLSA claims by filing consent forms. (Id. at 7-8.) Plaintiffs suggest that the proposed Class can be divided into three distinct subclasses: (1) Signer Subclass (2) Late-Signer Subclass and (3) Non-Signer Subclass. ("Subclasses) (Id. at 8)

Plaintiffs argue that this case requires a showing of common proof to common legal requirements under both the FLSA and PMWA. Their overarching argument is that this is a matter of proving the company's policy and practice in its calculation and administration of overtime compensation for its employees. (Id. at 10.) Plaintiffs argue that as a large company with over forty stores throughout Pennsylvania, Lowe's has a standard practice that will be questioned repeatedly by each of the plaintiffs if they were to prove their cases individually. (Id.)

1. Class Certification of Plaintiffs' Fair Labor Standards Act Claim Under 29 U.S.C. § 216(b)

Plaintiffs argue that the opt-in FLSA plaintiffs should proceed as a Class because there are enough overriding common facts and law that makes them similarly situated. Plaintiffs argue that Defendant's common pattern, plan or practice is the determinative factor in this case (Doc. 180-1 at 33) (citing Lockhart v. Westinghouse Credit Corp., 879 F.2d 43,52 (3d Cir. 1989)) and therefore, this type of analysis overrides differences such as plaintiffs' duties, job locations and billing rates (Doc.180-1 at 34) (citing Mos v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000)). Essentially, Plaintiffs argue that "all Class members share a common universe of core facts, and the resolution of their claims will entail an inquiry into Defendant's uniform course of conduct, which is subject to common proof in a single trial." (Doc.180-1 at 34.)

The FLSA provides in pertinent part:

An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such salary arrangement is permitted by the Act .

29 C.F.R. § 778.114 (emphasis added). Plaintiffs claim that Defendant Lowe's has failed to comply with the requirements set forth in this section of the FLSA. (Doc.180-1 at 9-10) Plaintiffs asked me to certify the Class under Section 216(b) of the FLSA. Class certification requirements under FLSA are different than those under other federal laws. Mainly, under the FLSA, prospective plaintiffs must consent to join the class and it is usually known as a collective action. "Because the Portal-to-Portal Act amendment changed participation in an FLSA class from 'opt-out' and 'opt-in', FLSA plaintiffs could not certify a class under Fed. R. Civ. P. 23, even though federal subject matter jurisdiction [was] obtained." Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003).

I conditionally certified the clas s of DMs and ADMs of Defendant's stores in the Commonwealth of Pennsylvania under the FLSA, 29 U.S.C. § 216(b) on June 17, 2004. (Doc.90.)That section of the FLSA provides in pertinent part:

An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to ...


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