Stevens v. HMSHost Corporation et al, No. 1:2010cv03571 - Document 174 (E.D.N.Y. 2014)

Court Description: ORDER granting 143 Motion to Decertify FLSA Collective Action; finding as moot 147 Motion for Partial Summary Judgment; denying 151 Motion to Certify FLSA Collective Action; finding as moot 153 Motion for Partial Summary Judgment. Ordered by Judge I. Leo Glasser on 8/26/2014. (Parachini, Alexander)

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Stevens v. HMSHost Corporation et al Doc. 174 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x EASTON STEVENS, et al., Plaintiffs, MEMORANDUM AND ORDER - against - 10 CV 3571 (ILG) (VVP) HMSHOST CORPORATION, et al., Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Easton Stevens brings this collective action under the Fair Labor Standards Act, 29 U.S.C. § 20 1, et seq., (the “FLSA”), against defendants HMSHost Corporation, Host International, Inc., and Host Services of New York (collectively, “defendants”). Plaintiff alleges that defendants failed to pay overtim e wages to Assistant Managers (“AMs”) because it m isclassified AMs as m anagerial em ployees who are exem pt from the FLSA’s overtim e requirem ents. An opt-in class of AMs was conditionally certified on J une 15, 20 12. Currently before the Court are defendants’ m otion to decertify the collective action, plain tiffs’ m otion for final certification, and plaintiffs’ and defendants’ m otions for partial sum m ary judgm ent pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendants’ m otion to decertify the collective action is GRANTED, plaintiffs’ m otion for final certification is DENIED, and accordingly the Court need not address the parties’ m otions for sum m ary judgm ent at this tim e. BACKGROU N D I. Facts 1 Dockets.Justia.com Unless otherwise noted, the following facts are undisputed. Defendants m anage and operate food and beverage concessions at num erous airports, highway travel facilities, an d shopping m alls across the United States. Defs.’ Ex. A (“Lauterbach Decl.”) ¶ 4. Their locations include a wide variety of restaurants, ranging from “grab and go” food outlets, to fast food venues, casual sit-down restaurants, bars, wine bars, brew pubs, and fine dining establishm ents. Id. ¶ 6. Defendants operate these restaurants both under their own n am e an d under other brand nam es, including Burger King, Starbucks, Chili’s, Quizno’s, California Pizza Kitchen, KFC, an d Pizza Hut. Id. ¶ 5. Defendants’ business is divided into units called “regions,” which do not necessarily correspond to geographic regions. Id. ¶ 10 . Each region is m anaged by a Senior Vice President. Id. ¶ 11. General Managers, who oversee specific locations—often m ore than one—report to Senior Vice Presidents. Id. ¶ 12. General Managers in turn supervise Store Managers. Id. ¶ 14. Depending on its size, a location m ay have m ore than one Store Manager. Id. ¶ 13. Store Managers are in charge of day-to-day operations at a particular location, an d supervise AMs and hourly em ployees. See id. ¶¶ 14, 18 . AMs are defendants’ lowest-level exem pt em ployees. Pls.’ Ex. B at 8 7. According to defendants, AMs are responsible for supervising Shift Supervisors and other hourly em ployees. Lauterbach Decl. ¶¶ 15, 18 ; Pls.’ Ex. B at 35. Indeed, the official job description for the AM position 1 provides that an AM • • • Supervises the day-to-day activities of Shift Supervisors and other nonm anagem ent associates Assigns work responsibilities, prepares schedules, and ensures that all shifts are covered Prepares daily orders, ensures units are stocked with appropriate levels of product and coaches Shift Supervisors on order procedures 1 There are three sub-levels of AMs, which have different m in im um experience requirem ents, but the “Essential Functions” are identical in each of the job descriptions. Defs.’ Ex. O. 2 • • • Conducts and coordinates on-the-job training for associates, and ensures all associates receive basic skills train ing to perform their jobs Resolves routine questions and problem s and refers m ore com plex issues to higher levels Provides recom m endations for hiring, firing, advancem ent, prom otion or any other status change of associates within the store Defs.’ Ex. O. Defendants state that although these job functions are for the m ost part consistent for all AMs, an AM’s precise day-to-day duties could vary significantly due to the vast differences between locations. Lauterbach Decl. ¶¶ 21, 24– 25. Although the job description focuses on their m anagerial duties, it is undisputed that AMs are also required to perform non-exem pt, non-m anagerial work. Indeed, all of the deposed plaintiffs testified that, at least som e of the tim e, they perform ed the sam e type of work as defendants’ hourly em ployees. See gen erally Dkt. No. 151 at 8 – 9 (collecting deposition citations). The deposed plaintiffs generally testified that they spent the m ajority of their tim e perform ing n on-exem pt work, but the split between exem pt and non -exem pt work varied am ong the plaintiffs, ranging from 95% nonexem pt hourly work at the high end, Pls.’ Ex. G at 20 2, to 70 % at the low end, Pls.’ Ex. N at 124. See also Dkt. No. 151 at 10 n.14 (collecting deposition citations). At the sam e tim e, m ost of the deposed plaintiffs testified that they perform ed at least som e exem pt m anagerial work. See, e.g., Dkt. No. 145-38 (collecting deposition citations). For exam ple, several of the deposed plaintiffs were involved in the interviewing and hiring process. Defs.’ Ex. M at 8 5; Defs.’ Ex. O at 10 6– 0 7, 113; Defs.’ Ex. U at 28– 29; Defs.’ Ex. V at 97; Defs.’ Ex. Z at 54, 145; Defs.’ Ex. CC at 53 (interviewing); Defs.’ Ex. U at 58 – 59; Defs.’ Ex. Z at 55 (hiring). Several m ore had authority to discipline and evaluate hourly em ployees, albeit to different degrees. Defs.’ Ex. M at 65; Defs.’ Ex. O at 123 (discipline); Defs.’ Ex. U at 10 2– 0 3; Defs.’ Ex. X at 57; 3 Defs.’ Ex. CC at 8 0 (evaluation). And m any of them were responsible for scheduling the shifts of hourly em ployees. Defs.’ Ex. O at 137– 38; Defs.’ Ex. U at 55, 58; see also Defs.’ Ex. Z at 61– 62 (subject to approval); Defs.’ Ex. BB at 44– 45 (sam e). Only a few of the opt-ins testified to perform ing no m anagerial work, or only a de m inim us am ount. Defs.’ Ex. R; Defs.’ Ex. S; Defs.’ Ex. W. Defendants were aware that AMs were perform ing non-exem pt work. For exam ple, a slide show used during a corporate presentation to hum an resources m anagers about FLSA com pliance noted that “Lots of our AMs are running food, running registers, an d usually have a rag in their hand!!!” Pls.’ Ex. DD. And defendants’ Vice President of Com pensation, Colem an Lauterbach (“Lauterbach”) testified that he had heard that AMs were “perform ing duties such as using rags an d m ops and clean ing units and cleaning food,” Pls.’ Ex. A at 59, and that defendants were generally aware that AMs were “cleaning an d cooking an d serving food and drinks and serving custom ers, Defs.’ Ex. B at 95– 96. II. Pro ce d u ral H is to ry Plaintiff com m enced this action on August 2, 20 10 by filing a com plaint in this Court. Dkt. No. 1. On J une 10 , 20 11, plaintiff m oved to conditionally certify a class pursuant to 29 U.S.C. § 216(b). Dkt. No. 36. This Court referred the m atter to Magistrate Pohorelsky to render a decision, Dkt. No. 45, and he entered an order conditionally certifying the class on J une 15, 20 12, Dkt. No. 49. Defendants appealed that decision, Dkt. No. 51, but their appeal was denied by order dated October 10 , 20 12, Dkt. No. 56. After the class was conditionally certified, 275 plaintiffs opted in to the 4 class, an d 19 were deposed in the course of discovery. 2 Dkt. No. 143 at 7 n.6. Following the close of discovery, defendants m oved to decertify the collective action on April 7, 20 14. Dkt. No. 143. The next day, plaintiff m oved for final certification of the collective action. Dkt. No. 151. Plaintiff and defendants filed their oppositions on May 7, 20 10 . Dkt. Nos. 161, 164. Contem poraneously with their m otions regarding class certification, the parties each also m oved for partial sum m ary judgm ent on discrete issues. Defendants filed their m otion for sum m ary judgm ent on April 7, 20 10 , Dkt. No. 147, and plaintiff on April 8 , 20 10 , Dkt. No. 153. Both plaintiff and defendants filed their oppositions on May 7, 20 14. Dkt. Nos. 160 , 161. The parties filed their replies on May 22, 20 14. Dkt. Nos. 169, 170 . LEGAL STAN D ARD S I. FLSA Exe m p tio n s The FLSA generally requires all em ployers to pay em ployees overtim e wages for all hours worked in excess of 40 hours per week, unless the em ployees fall into one of the statutory exem ption categories. 29 U.S.C. § 20 7(a); Indergit v. Rite Aid Corp., 293 F.R.D. 632, 637 (S.D.N.Y. 20 13). Exem pt em ployees in clude those who are “em ployed in a bona fide executive, adm inistrative, or professional capacity . . . .” 29 U.S.C. § 213(a)(1). The relevant Departm ent of Labor regulations provide guidance as to the scope and applicability of these exem ptions, but in all cases the exem ptions should be construed narrowly, in accordance with the FLSA’s rem edial purposes. See, e.g., Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991). 2 The depon ents included 14 plaintiffs that opted in following conditional certification, 4 plaintiffs that opted in prior to conditional certification , and the nam ed plaintiff, Easton Stevens. 5 The “executive exem ption” applies to an em ployee who (1) is “[c]om pensated on a salary basis of not less than $ 455 per week;” (2) “[w]hose prim ary duty is m anagem ent of the enterprise in which the em ployee is em ployed or of a custom arily recognized departm ent or subdivision thereof;” (3) “custom arily an d regularly directs the work of two or m ore other em ployees;” and (4) has “the authority to hire or fire other em ployees or whose suggestions and recom m endations as to the hiring, firing, advancem ent, prom otion or any other change of status of other em ployees are given particular weight.” 29 C.F.R. §541.10 0 (a). For purposes of the executive exem ption, “m anagem ent” includes, but is not lim ited to activities such as interviewing, selecting, and training of em ployees; setting and adjusting their rates of pay an d hours of work; directing the work of em ployees; m aintaining production or sales records for use in supervision or control; appraising em ployees' productivity and efficiency for the purpose of recom m ending prom otions or other changes in status; handling em ployee com plaints and grievances; disciplining em ployees; planning the work; determ ining the techniques to be used; apportioning the work am ong the em ployees; determ in ing the type of m aterials, supplies, m achinery, equipm ent or tools to be used or m erchandise to be bought, stocked and sold; controlling the flow and distribution of m aterials or m erchandise an d supplies; providing for the safety an d security of the em ployees or the property; planning and controlling the budget; and m onitoring or im plem enting legal com pliance m easures. 29 C.F.R. § 541.10 2. The “adm inistrative exem ption” applies to an em ployee who (1) is “[c]om pensated on a salary basis of not less than $ 455 per week;” (2) “[w]hose prim ary duty is the perform ance of office or non-m anual work directly related to the m anagem ent or general business operations of the em ployer or the em ployer’s custom ers;” and (3) “[w]hose prim ary duty includes the exercise of discretion and independent judgm ent with respect to m atters of significance.” 29 C.F.R. § 541.20 0 (a). 6 The applicability of each of these exem ptions turns on the “prim ary duty” of the em ployee. See 29 C.F.R. § 541.70 0 (a). To determ ine whether an em ployee’s prim ary duty is exem pt work, courts look to factors including “the relative im portance of the exem pt duties as com pared with other types of duties; the am ount of tim e spent perform ing exem pt work; the em ployee’s relative freedom from direct supervision; and the relationship between the em ployee’s salary and the wages paid to other em ployees for the kind of nonexem pt work perform ed by the em ployee.” Id. The am ount of tim e spent perform ing exem pt work is not dispositive—“Em ployees who do not spend m ore than 50 percent of their tim e perform ing exem pt duties m ay nonetheless m eet the prim ary duty requirem ent if the other factors support such a conclusion.” Id. § 541.70 0 (b). In addition, both the regulations and case law recognize that an em ployee m ay perform exem pt work—such as supervising or directing the work of subordinates— concurrently with nonexem pt work. See, e.g., id. § 541.10 6; Indergit, 293 F.R.D. at 641– 42. II. Co lle ctive Actio n The FLSA provides that “one or m ore em ployees” m ay bring an action for violation of its m inim um wage or overtim e requirem ents “for and in behalf of him self or them selves and other em ployees sim ilarly situated.” 29 U.S.C. § 216(b). Unlike a class action under Rule 23 of the Federal Rules of Civil Procedure, em ployees m ust affirm atively opt in to an FLSA collective action. See id. FLSA collective actions generally proceed in two stages. Myers v. Hertz Corp., 624 F.3d 537, 554– 55 (2d Cir. 20 10 ). In the first stage, called conditional certification, the court addresses whether notice should be sent to “sim ilarly situated” em ployees to provide them with the opportunity to join the action. Id. at 555. This stage requires only a “m odest factual 7 showing” that the potential opt-in class “together were victim s of a com m on policy or plan that violated the law.” Id. At the second stage, the court m ust determ ine, “on a fuller record . . . whether the plaintiffs who have opted in are in fact ‘sim ilarly situated’ to the nam ed plaintiffs. The action m ay be ‘de-certified’ if the record reveals that they are not, and the opt-in plaintiffs’ claim s m ay be dism issed without prejudice.” Id. At the decertification stage, the burden is on the plaintiff to prove that the other em ployees are sim ilarly situated. See, e.g., Indergit, 293 F.R.D. at 639. Neither the text of the FLSA nor the relevant regulations provide further guidance as to what it m eans for em ployees to be “sim ilarly situated.” It is wellestablished that “sim ilarly situated” does not require that plaintiffs’ positions be “identical,” Hendricks v. J .P. Morgan Chase Bank, N.A., 263 F.R.D. 78, 8 3 (D. Conn. 20 0 9), but the Second Circuit has not yet articulated a precise standard for m aking such a determ ination. Courts in this Circuit have therefore em ployed an ad hoc, case-by-case approach, which looks to a variety of factors, including “(1) the disparate factual and em ploym ent settings of the individual plaintiffs; (2) the defenses available to defendants which appear to be individual to each plaintiff; and (3) fairness an d procedural considerations that counsel for or against m aintaining a collective action.” Gardner v. W. Beef Props., Inc., No. 0 7-cv-2345, 20 13 WL 1629299, at *4 (E.D.N.Y. Mar. 25, 20 13) (collecting cases), adopted 20 13 WL 1632657 (E.D.N.Y. Apr. 16, 20 13). The Court does not evaluate the m erits of plaintiffs’ claim s at the decertification stage. Hendricks, 263 F.R.D. at 8 3; Gardner, 20 13 WL 1629299, at *3. However, “understanding their claim s . . . is essential to deciding whether Plain tiffs are sim ilarly situated in relevant respects and allowed to proceed as a collective.” Sim m ons v. Valspar Corp., No. 10 -30 26, 20 13 WL 2147862, at *2 (D. Minn. May 16, 20 13) (em phasis 8 in original). Sim ilarly, the Court does not address the m erits of defendants’ defenses, but rather looks only to “whether the defen ses asserted will be so in dividualized as to m erit decertification.” Cottle v. Falcon Holdings Mgm t., LLC, 8 92 F. Supp. 2d 10 53, 10 69 (N.D. Ind. 20 12); accord Sim m ons, 20 13 WL 2147862, at *2. Ultim ately, “[t]he decision to certify or decertify a collective action under section 216(b) is soundly within the district court’s discretion.” Pendlebury v. Starbucks Coffee Co., 518 F. Supp. 2d 1345, 1348– 49 (S.D. Fla. 20 0 7); see also Gardner, 20 13 WL 1629299, at *4 (“The decertification process . . . appears to be largely in the Court’s discretion.”) (quotation om itted). D ISCU SSION I. D e ce rtificatio n a. D is p arate Factu a l & Em p lo ym e n t Se ttin gs Defendants argue that the plaintiff AMs had widely varying em ploym ent settings due to vast differences in location, size, brand, and type of restaurant. In addition, they argue that the deposed plaintiffs’ testim ony evidences a wide disparity in both the am ount of exem pt work plaintiffs perform ed and the am ount of authority and discretion plaintiffs were allowed to exercise. Plaintiffs argue that any differences in em ploym ent setting are im m aterial, because all of the plaintiffs prim arily perform ed non-exem pt work, had lim ited m anagerial authority, an d were subject to uniform corporate policies and a blanket exem pt classification. Defendants’ blanket classification decision and uniform corporate policies do not on their own render plaintiffs sim ilarly situated. Although it can be evidence of sim ilarity, it is well established “that blanket classification decisions do not autom atically qualify the affected em ployees as sim ilarly situated, n or elim inate the 9 need to m ake a factual determ ination as to whether class m em bers are actually perform ing sim ilar duties.” Gardner, 20 13 WL 1629299, at *7 (collecting cases) (quotation om itted). Neither is it dispositive that plaintiffs were subject to uniform corporate policies and received uniform training. Although the policies in question prescribe how to perform discrete tasks such as ringing a cash register, lifting heavy item s, and serving food, they do not dictate the particular job duties of each AM. And plaintiffs do not explain how the uniform training AMs receive relates to their perform ing non-exem pt work, rather than their m anagerial duties. At the sam e tim e, the Court is not persuaded by defendants’ argum ent that variations in location, size, and type of restaurant by them selves preclude a finding that plaintiffs are sim ilarly situated. The argum en t does have an in heren t appeal, because it seem s intuitive that a quick service grab-and-go location in an airport, a roadside coffee shop, and a full-service, sit-down restaurant are very different em ploym ent settings, an d that AMs will have different duties based on the num ber of subordin ates at their location. But the record does not bear this out. Other than identifying deponents who supervised disparate num bers of hourly em ployees, defendants have not shown any exam ples of a correlation between a plaintiff’s location and their job duties. Ultim ately, determ inin g whether plaintiffs’ em ploym ent settings were sim ilar requires the Court to exam in e the deponents’ testim ony about their particular job duties and level of m anagerial authority. With respect to the various m anagerial job duties identified in the Departm ent of Labor regulations, the variation and dissim ilarity across the deponents’ testim ony is im m ediately apparent. For exam ple, som e of the depon ents testified that they had scheduling authority. Defs.’ Ex. O at 137– 38 ; Defs.’ Ex. U at 55, 58 . Others stated that they could schedule shifts only with the approval of their Store 10 Manager or a Hum an Resources (“HR”) em ployee. Defs.’ Ex. Z at 61– 62; Defs.’ Ex. BB at 44– 45. And still others testified that they had no such authority. Defs.’ Ex. P at 43; Defs.’ Ex. R at 48; Defs.’ Ex. S at 67; Defs.’ Ex. W at 56. Sim ilarly, som e of the deponents testified that they could discipline hourly em ployees, Defs.’ Ex. M at 65; Defs.’ Ex. O at 123, while others could only do so with their Store Manager’s or HR’s approval, Defs.’ Ex. U at 91– 92, 98– 10 1; Defs.’ Ex. W at 59; Defs.’ Ex. X at 10 4– 0 5; Defs.’ Ex. Y at 144; Defs.’ Ex. Z at 66– 71. And one of the deponents testified that she could not discipline subordinates. Defs.’ Ex. S at 67. The record also reveals a significant disparity with respect to hiring and firing authority. Several of the deposed plaintiffs testified that they played no role in the hiring an d firing process. Defs.’ Ex. R. at 47, 55– 56; Defs.’ Ex. S at 71; Defs.’ Ex. X at 51, 64. But a num ber of others testified that they were involved in the hiring and firing process. Defs.’ Ex. U at 58 – 59; Defs.’ Ex. Z at 55. And others testified that they were occasionally involved. Defs.’ Ex. W at 71; Defs.’ Ex. P at 65; Defs.’ Ex. CC at 53. In addition, several of the deponents testified that they interviewed job candidates. Defs.’ Ex. M at 8 5; Defs.’ Ex. O at 10 6– 0 7, 113; Defs.’ Ex. U at 28– 29; Defs.’ Ex. V at 97– 98; Defs.’ Ex. Z at 54, 145; Defs.’ Ex. CC at 53. But an equal num ber testified that they never did so. Defs.’ Ex. P at 63; Defs.’ Ex. R at 47; Defs.’ Ex. S at 67; Defs.’ Ex. W at 54; Defs.’ Ex. X at 50 – 51; Defs.’ Ex. Y at 45. Sim ilarly, there was a roughly even split between deponents who evaluated hourly em ployees, Defs.’ Ex. U at 10 2– 0 3; Defs.’ Ex. X at 57; Defs.’ Ex. CC at 8 0 , and those who testified that they did not, Defs.’ Ex. Q at 97; Defs.’ Ex. R at 49. And even am ong those who testified that they interviewed candidates or evaluated subordinates, there were differences as to the extent of their authority, the am ount of discretion they could exercise, and the degree to 11 which their supervisors took their recom m en dations into account. Com pare Defs.’ Ex. V at 97– 98 (stating that he interviewed candidates using a set list of questions and then m ade recom m endations to his supervisors), with Defs.’ Ex. O at 10 6– 0 7, 113 (stating that he interviewed candidates after his supervisors pre-screened them ); com pare Defs.’ Ex. CC at 8 1 (stating that his supervisor determ ined whether hourly em ployees received raises based on his ratings), with Defs.’ Ex. U at 10 3 (stating that his evaluation did not have any effect on the am ount of an hourly em ployee’s raise). As the exam ples the Court has highlighted dem onstrate, the opt-in plaintiffs’ testim ony varies significantly with respect to the factors relevant to the FLSA exem ptions. These wide differences in em ploym ent settings and job duties “greatly com plicate the use of representative proof either to prove the correctness of the executive classification or to rebut such a showing.” J ohnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 582 (E.D. La. 20 0 8). Accordingly, the disparate factual and em ploym ent settings of the opt-in plaintiffs weigh against proceedin g as a collective action. b. In d ivid u alize d D e fe n s e s Defendants next assert that their “num erous individualized defenses . . . preclude certification.” They first argue that a collective action will prejudice their defense of judicial estoppel against those opt-in plaintiffs who failed to disclose their FLSA claim s in prior bankruptcy proceedings. But the court in Indergit recently held that judicial estoppel is not the sort of individualized defense that requires decertification, because it affects only dam ages, not liability, and can be easily and quickly resolved without the need for individualized proof at trial: “whether an opt-in’s claim s were discharged due to the bankruptcy disclosures . . . would be subject to generalized proof, and the question 12 of judicial estoppel itself is one of law, that could be determ in ed by the Court in one instance.” Indergit, 293 F.R.D. at 649– 50 . The sam e is true of defendants’ statute of lim itations defenses. See, e.g., Scovil v. Fedex Ground Package Sys., Inc., 8 86 F. Supp. 2d 45, 58 (D. Me. 20 12). Defendants also argue that they intend to challenge the credibility of som e of the plaintiffs, noting that several deponents indicated on their yearly self-evaluations that they regularly perform ed exem pt, m anagerial work, but claim ed that those statem ents were em bellishm ents or lies when confronted with their evaluations during their depositions. See, e.g., Defs.’ Ex. U at 19; Defs.’ Ex. Y at 163; Defs.’ Ex. Z at 146– 47, 164; Defs.’ Ex. AA at 43. But these types of attacks on credibility are sim ply not the sort of individualized defen ses that would preclude a collective action. See, e.g., Pendlebury v. Starbucks Coffee Co., 518 F. Supp. 2d 1345, 1362– 63 (S.D. Fla. 20 0 7) (“These contradictions are m atters of credibility for the factfinder, not individualized defenses.”) (em phasis in original). Finally, defendants argue that their defenses are individualized because plaintiffs had “widely dissim ilar” levels of m anagerial authority and duties, an d accordingly they cannot assert a class-wide exem ption defense. Here, the individualized defenses prong of the analysis m irrors the disparate em ploym ent settings prong. As discussed above, the deposed plaintiffs’ testim ony displays a wide disparity with respect to plaintiffs’ authority to hire, fire, evaluate, discipline, and schedule subordin ates, as well as the num ber of em ployees each supervised. Accordingly, determ ining whether a plaintiff is subject to an FLSA exem ption will require individualized, rather than representative, proof. As the court in J ohnson so aptly put it, “[u]sing representative proof is problem atic if for every instance in which an opt-in plaintiff reported that she hired 13 subordinates, there is an alternative response to the contrary.” 561 F. Supp. 2d at 58 7; see also id. (“[Defendants] cannot be expected to com e up with ‘representative’ proof when the plaintiffs cannot reasonably be said to be representative of each other.”). Accordingly, defen dants’ individualized defen ses weigh against proceeding as a collective action. See Green v. Harbor Freight Tools USA, Inc., 8 88 F. Supp. 2d 10 88, 110 4 (D. Kan. 20 12) (decertifying class where “deposition testim ony shows that it is not possible to develop com m on testim ony from the Store Managers regarding their daily responsibilities and duties, or the weight given their recom m endations regarding hiring, firing and discipline”). c. Fairn e s s & Pro ce d u ral Co n s id e ratio n s The Suprem e Court has stated that an FLSA collective action allows plaintiffs to take “advantage of lower individual costs to vindicate rights by the pooling of resources,” and allows the judicial system to benefit by “efficient resolution in one proceeding of com m on issues of law and fact arising from the sam e alleged discrim inatory activity.” Hoffm ann-La Roche v. Sperling, 493 U.S. 165, 170 (1989). But “[w]here there appears to be substantial different em ploym ent experiences am ong the various opt-ins the procedural advantages of a collective action cannot be realized.” Indergit, 293 F.R.D. at 650 (quotation om itted). This third prong of the sim ilarly situated analysis is therefore guided by the Court’s resolution of the first two. As discussed above, plaintiffs’ em ploym ent settings and job duties varied widely in m aterial ways an d defendants’ exem ption defenses are accordingly not am enable to generalized or representative proof. Proceeding as a collective action would therefore have one of two results—it would either prejudice defendants’ ability to present their 14 defenses, or require m ini-trials for each of the opt-in plaintiffs. For this and all of the foregoing reasons, the class m ust be decertified. II. Su m m ary Ju d gm e n t Having determ ined that the opt-in class should be decertified, the Court need not address the parties’ m otions for sum m ary judgm ent. The discrete issues raised— defendants’ willfulness and the applicability of the adm inistrative exem ption—can be addressed at the appropriate tim e in each of the individual actions. CON CLU SION For all of the foregoing reasons, defendants’ m otion to decertify the collective action is GRANTED. The claim s of the opt-in plaintiffs are dism issed without prejudice to refiling. SO ORDERED. Dated: Brooklyn, New York August 26, 20 14 / s/ I. Leo Glasser Senior United States District J udge 15

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