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Mott v. Driveline Retail Merch., Inc.

United States District Court, E.D. Pennsylvania

May 21, 2014

LORI S. MOTT, et al., Plaintiffs,
v.
DRIVELINE RETAIL MERCHANDISING, INC., Defendant

For LORI S. MOTT, JUDY RATLIFF, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMIARLY SITUATED, SUSAN MOORE, SUSAN GIBBS, CYNTHIA COTTEN, Plaintiffs: RALPH A. POWELL, LEAD ATTORNEY, RALPH A POWELL ESQ PC, NEWTOWN, PA; RICHARD P. MYERS, LEAD ATTORNEY, PAUL, REICH & MYERS, P.C., PHILADELPHIA, PA.

For DRIVELINE RETAIL MERCHANDISING INC., Defendant: SHANNON K. EMMONS, LEAD ATTORNEY, PRO HAC VICE, CLAYTON D. KETTER, THOMAS G. WOLFE, LEAD ATTORNEYS, PHILLIPS MURRAH PC, OKLAHOMA CITY, OK; MICHAEL J. DOLAN, GERMAN GALLAGHER & MURTAGH, PHILADELPHIA, PA.

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MEMORANDUM

ANITA B. BRODY, J.

Plaintiffs Lori S. Mott, Cynthia Cotten, Susan Gibbs, Susan Moore, and Judy Ratcliff, on behalf of themselves and all others similarly situated, bring suit against Defendant Driveline Retail Merchandising Inc. (" Driveline" ) alleging that Driveline failed to pay Plaintiffs for required work in violation of the minimum wage and overtime provisions of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 206 & 207(a).[1] Pursuant to the FLSA's collective action provision at 29 U.S.C. § 216(b), Plaintiffs move for an order (1) granting conditional certification of a class comprised of all persons who are or were employed by Driveline as merchandisers of

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any kind during the three years preceding the filing of this lawsuit; (2) compelling Driveline to provide Plaintiffs' attorneys with the names and last known contact information for all potential class members; (3) authorizing Plaintiffs' attorneys to send court-supervised notice to all potential class members; and (4) providing for a 120-day period from the date notices are sent for potential class members to join this action by filing consents to sue with the Court. For the reasons discussed below, I will grant Plaintiffs' motion.

I. BACKGROUND

Driveline provides in-store marketing and retail services to consumer products companies and national retailers. The five named Plaintiffs are former Driveline employees who worked as hourly-paid " Merchandisers," " Master Merchandisers," or " Resetters" (" Merchandisers" ) across approximately 14 states. As Merchandisers, Plaintiffs performed services related to the display of products and promotional materials in retail stores. The Plaintiffs' stated wages ranged from $8 to $11 per hour.

According to the Complaint, Plaintiffs began their workday at home by logging on to Driveline's intranet. Plaintiffs responded to email messages, downloaded and printed work orders, reviewed instructions for each merchandising job, and mapped routes to store locations. Plaintiffs were also required to print work authorization letters and work completion forms to be signed by the manager of each store in which they worked. In addition, Plaintiffs began each day by loading into their personal vehicles displays and other marketing materials sent to them by Driveline that they then transported to their assigned retail locations. After completing these administrative tasks at home, Plaintiffs drove to their first retail store of the day.

After completing their last assigned store call of the day, Plaintiffs were required to again log on to Driveline's intranet. Plaintiffs uploaded signed work orders associated with in-store work performed that day; completed questionnaires associated with each work order; uploaded digital photographs taken during the day associated with each work order; and completed and submitted inventory reports.

Plaintiffs allege that Driveline violated the wage and overtime provisions of the FLSA by not paying them for hours they were required to work " off the clock" on Driveline's behalf. In particular, Plaintiffs allege that they were not paid for two categories of time worked -- (1) the drive time between home and their first assigned retail location and (2) the time spent on administrative work at home in the mornings and evenings as well as the drive time between store locations during the work day.

Driveline denies these allegations and asserts that its policy is to compensate fully all employees for all time worked. With respect to the claim for uncompensated drive time at the beginning of the day, Driveline argues that its policy of not paying for commute time is legal under federal law. With respect to the claim for uncompensated administrative time and drive time between store locations during the day, Driveline asserts that Merchandisers are paid an allotted time for each merchandising job, and those allotted times are calculated to include administrative time and drive time between stores. If a Merchandiser needs additional time to complete a task, Driveline instructs Merchandisers to request written pre-approval from their District Managers. Driveline argues that regardless of pre-approval, Merchandisers can submit their time

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worked to their District Managers and be paid for the additional time.

II. LEGAL STANDARD

Under the collective action provision of the FLSA, an employee alleging an FLSA violation can bring a suit on behalf of " himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). To be included in a collective action, plaintiffs must be " similarly situated" and give written consent. Id.

" Courts in [this] Circuit follow a two-step process for deciding whether an action may properly proceed as a collective action under the FLSA." Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013). At the first step, the named plaintiff must make a " modest factual showing" that the employees identified in the complaint are " similarly situated." Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012). The court conducts a preliminary inquiry into whether the plaintiff's proposed class members were collectively " the victims of a single decision, policy, or plan . . . ." Ruehl v. Viacom, Inc., 500 F.3d 375, 388 (3rd Cir. 2007) (citing Sperling v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). The plaintiff must produce some evidence " beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees." Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3rd Cir. 2011), rev'd on other grounds, Symczyk, 133 S.Ct. at 1526. The plaintiff has " a very lenient burden to bear at this initial stage of certification." Lugo v. Farmer's Pride Inc., No. 07-0749, 2008 WL 638237, at *3 (E.D. Pa. Mar. 7, 2008); Smith v. Sovereign Bancorp, Inc., No. 03-2420, 2003 WL 22701017, at *3 (E.D. Pa. Nov. 13, 2003) (stressing that " modest factual showing" is an " extremely lenient standard" ). " The Court does not evaluate the merits of the claim at this stage . . . ." Lugo, 2008 WL 638237, at *3. " If the plaintiff meets this lenient standard, the court grants only conditional certification for the purpose of notice and discovery." Id.

At the second stage, with the benefit of discovery, the court " makes a conclusive determination that every plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff." Symczyk, 656 F.3d at 193. The plaintiff bears a heavier burden of proof at this second stage and must prove, by a preponderance of the evidence, that the proposed collective plaintiffs are similarly situated. Zavala, 691 F.3d at 536. Courts are to take an ad hoc approach, " consider[ing] all the relevant factors and mak[ing] a factual determination on a case-by-case basis." Id. The relevant factors include " (1) 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 v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). If the conditional group of plaintiffs are not in fact similarly situated to the named plaintiffs, the group is then decertified, the opt-in plaintiffs are dismissed without prejudice, and any remaining plaintiffs are permitted to move onto the trial stage of litigation. Lugo, 2008 WL 638237, at *3.

III. DISCUSSION

Plaintiffs seek to certify a class comprised of all persons who are or were employed by Driveline as merchandisers of any kind during the three years preceding the filing of this lawsuit. During the three-year time period, Driveline employed

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approximately 27,095 Merchandisers. In addition to the five named Plaintiffs, approximately 40 opt-in plaintiffs from across the country have already joined the litigation by filing consents with the Court.

Driveline's opposition to the motion for conditional certification can be organized into two arguments. First, Driveline argues that Plaintiffs have failed to identify a common Driveline corporate policy or practice that violates the FLSA. Second, Driveline argues that Plaintiffs have failed to show that they are similarly situated to the proposed class of Merchandisers nationwide.

A. Evidence of Uniform Company Policy

1. Drive Time between Home and First Retail Location

Plaintiffs assert that Driveline enforces a company-wide policy of not paying Merchandisers for the time they spend driving between their home and their first store call of the day. Under Driveline's January 2013 Terms of Work Acceptance Policy, Driveline will not pay drive time, or reimburse mileage, for the normal commute from a Merchandiser's home to the first store on a given day unless the Merchandiser's home is more than 30 miles from the first store. Pls.' Br. Ex. F, Jan. 2013 " Terms of Work Acceptance." Plaintiffs argue that Driveline's policy violates the " continuous workday" rule under which any travel time that occurs after the beginning of an employee's first principal activity and before the end of an employee's last principal activity on any workday must be included in hours worked. See 29 C.F.R. § 790.6(a). Plaintiffs allege that the administrative tasks performed at home each morning constitute a principal activity, and thus their subsequent drive time between home and their first store call should be compensable.

Driveline does not dispute that it is company policy not to compensate for time spent commuting from home to the first job of the day. Defs.' Br. at 19. Instead, Driveline argues that neither its formal nor informal policies require merchandisers to log on to their computers at home in the morning, and administrative tasks can be performed any time prior to visiting a store location from any computer with internet access. Thus, according to Driveline, the " continuous workday rule" is not applicable, and Driveline's policy of not paying for commute time is legal.

While Driveline's arguments may have merit, legality is not decided at this stage of the action. Lugo, 2008 WL 638237, at *3. " The thrust of the Court's inquiry at this juncture--i.e., at the conditional certification stage--'is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are 'similarly situated' under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.'" Karlo v. Pittsburgh Glass Works, LLC, 880 F.Supp.2d 629, 643 (W.D. Pa. 2012) (citation omitted). Plaintiffs need only make a modest factual showing of that the members of the proposed class were collectively victims of a uniform Driveline policy, plan, or scheme. Plaintiffs have met this burden with evidence of Driveline's nationwide policy against compensation for morning drive time.

2. Administrative Time Before and After Work and Drive Time Between Retail Locations

Second, Plaintiffs assert that Driveline enforces a company-wide policy of not paying Merchandisers for the time they spend completing necessary administrative tasks at the beginning and the end of the day and driving between retail locations during the day. As ...


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