Scott v. Chipotle Mexican Grill, Inc. ( 2020 )

17-2208, 18-359
Scott v. Chipotle Mexican Grill, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: February 13, 2019 Decided: April 1, 2020)
Nos. 17-2208-cv, 18-359-cv
MAXCIMO SCOTT, on behalf of himself and others similarly situated, JAY
FRANCIS ENSOR, CHRISTINE JEWEL GATELEY, KRYSTAL PARKER, STACY HIGGS,
EUFEMIA JIMENEZ, MATHEW A. MEDINA,
Plaintiffs-Appellants,
v.
CHIPOTLE MEXICAN GRILL, INC.,
CHIPOTLE SERVICES, LLC,
Defendants-Appellees. *
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
PARKER, CHIN, and SULLIVAN, Circuit Judges.
* An additional 516 plaintiffs are listed in the attached Appendix.
Appeal from an opinion and order of the United States District
Court for the Southern District of New York (Carter, J.) in this hybrid class and
collective action brought on behalf of employees of a national restaurant chain
who claim they were denied overtime wages because they were misclassified as
exempt employees. The district court denied the employees' motion for class
certification and granted the employer's motion to decertify the conditionally
certified collective action. The employees appeal, contending that the district
court erred in (1) denying class certification on the basis of a lack of
predominance and superiority, and (2) granting decertification of the collective
action on the ground that the named plaintiffs and opt-in plaintiffs are not
similarly situated.
AFFIRMED IN PART and VACATED IN PART.
Judge SULLIVAN CONCURS IN PART and DISSENTS IN PART in a
separate opinion.
RACHEL BIEN (Justin M. Swartz, Melissa L. Stewart, on
the brief), Outten & Golden LLP, New York, New
York; Paolo Chagas Meireles, Shavitz Law Group,
P.A., Boca Raton, Florida; Brian Scott Schaffer,
Fitapelli & Schaffer, LLP, New York, New York,
for Plaintiffs-Appellants.
2
RICHARD J. SIMMONS (Lisa M. Lewis, Brian D. Murphy,
on the brief), Sheppard, Mullin, Richter &
Hampton LLP, Los Angeles, California, New
York, New York; Bruce A. Montoya, John Karl
Shunk, Kendra N. Beckwith, Messner Reeves
LLP, Denver, Colorado, for Defendants-Appellees.
___________
CHIN, Circuit Judge:
Plaintiffs-appellants are seven named plaintiffs representing six
putative classes under Federal Rule of Civil Procedure 23(b)(3) (the "class
plaintiffs"). Plaintiffs-appellants also sue on behalf of themselves and 516
individuals who opted in to a conditionally certified collective action (the
"collective plaintiffs") pursuant to the Fair Labor Standards Act (the "FLSA"), 29
U.S.C. § 216(b). Class plaintiffs are current and former "Apprentices" of
defendants-appellees Chipotle Mexican Grill, Inc. and Chipotle Services, LLC
(together, "Chipotle") who allege that Chipotle misclassified them as exempt
employees in violation of the labor laws in six states. Collective plaintiffs are
current and former Chipotle Apprentices who allege that Chipotle misclassified
them as exempt employees in violation of the FLSA. As a result of Chipotle's
purported misclassification, plaintiffs-appellants contend that they were
unlawfully denied overtime wages required under state and federal law.
3
On March 29, 2017, the district court denied class plaintiffs' class
certification motion on the grounds that class plaintiffs failed to meet the
predominance and superiority requirements of Rule 23(b)(3). Scott v. Chipotle
Mexican Grill, Inc., No. 12-cv-8333, 2017 WL 1287512, at *3-8 (S.D.N.Y. Mar. 29,
2017). In the same decision, the district court granted Chipotle's motion to
decertify the collective action on the grounds that collective plaintiffs failed to
establish that opt-in plaintiffs were "similarly situated" to the named plaintiffs as
required for collective treatment under the FLSA. Id. at *8-9.
On appeal, class plaintiffs principally argue that the district court
relied on erroneous law and clearly erroneous facts in determining that common
questions of law or fact did not predominate. Collective plaintiffs contend that
the district court erred in decertifying the collective action because it relied on an
erroneous view of the law -- namely, that the FLSA's "similarly situated" inquiry
"mirrors" the Rule 23 analysis in rough proportion to the number plaintiffs who
have chosen to opt-in. For the reasons set forth below, we affirm the district
court's order denying class certification, vacate the district court's order
decertifying the collective action, and remand for further proceedings.
4
BACKGROUND
A. The Facts
Chipotle operates over 2,000 restaurants in the United States,
serving burritos, tacos, salads, and more. To manage and operate its stores,
Chipotle employs both salaried and hourly workers. There are three categories
of salaried employees -- Restauranteurs, General Managers, and Apprentices --
not all of whom are necessarily employed at each Chipotle location. Chipotle
locations also hire hourly workers, namely Service Managers, Kitchen Managers,
and crew. As of 2016, Apprentices earned a salary of between $38,000 and
$51,500 and were eligible for benefits such as bonuses, paid vacation, insurance,
and retirement plans.
Chipotle describes the "principal responsibilities" of the Apprentice
position as "[l]eading the restaurant team in successful day-to-day operations";
"[a]cting as General Manager when General Manager is not present"; "[t]raining
and developing the restaurant team"; "[e]suring that employees are paid
properly, receive appropriate benefits, and are prepared for additional career
opportunities"; "[i]dentifying talent, interviewing, and hiring new Crew";
"[p]articipating in personnel decisions regarding the restaurant team"; "[w]riting
5
schedules that meet the needs of the business"; "[a]ssisting the General Manager
in performing administrative duties including payroll, inventory, food ordering,
proper cash handling, etc."; "[s]uccessfully communicating company
changes/focus to the team"; "[b]uilding sales and managing the restaurant
budget"; "[m]aintaining a clean restaurant with excellent quality food and
customer service"; and "[m]aintaining cleaning and sanitation standards within
the restaurant." J. App'x at 4246; see also id. at 4250. The parties dispute whether
Apprentices are in training to become General Managers.
In or around 2011, Chipotle hired a consultant to opine on the
exempt status of Apprentices -- that is, whether Apprentices were entitled to
overtime or were considered "executive" or "managerial" employees and were
therefore exempt from state and federal overtime laws. After reviewing
Chipotle's uniform job description and conducting interviews with Apprentices
at various locations, the consultant concluded that the Apprentice position is
uniformly exempt from state and federal overtime laws based on the “wage and
hour” definition of an Executive. The consultant looked to the following range of
tasks of Apprentices in making this determination: (1) hiring and firing, (2)
training, (3) scheduling, (4) payroll processing, (5) writing and conducting
6
performance reviews, (6) documenting performance, (7) cash handling, (8)
managing employees during manager's absence, and (9) communicating
corporate changes. The consultant's report notes that although Apprentices
assist with manual labor, the majority of Apprentice time is spent managing the
day-to-day activities of the restaurant. Chipotle thereafter classified all
Apprentices throughout the country (except those in California) as exempt from
the overtime provisions of the FLSA and related state overtime laws based on
their salary, their actual duties, and Chipotle's reasonable expectations regarding
the duties performed.
B. Procedural History
Plaintiff-appellant Maxcimo Scott filed the initial complaint in this
case on November 15, 2011. Following a series of amendments to the pleadings
joining additional plaintiffs and adding claims, on February 10, 2015, plaintiffs-
appellants filed the operative third amended complaint, which alleges that
Chipotle misclassified its Apprentice workers and denied them overtime pay in
violation of the FLSA as well as state laws in Colorado, Illinois, Missouri, New
York, North Carolina, and Washington. Class plaintiffs purport to represent six
7
classes totaling approximately 1,600 Apprentices 1 who worked at Chipotle
locations in the six states. Collective plaintiffs consist of the seven named
plaintiffs and 516 opt-in plaintiffs who affirmatively consented to joining the
FLSA suit after the district court conditionally certified the collective action on
June 30, 2013.
On May 9, 2016, following several years of discovery -- including the
taking of over 80 depositions and the submission of over 240 declarations --
Chipotle moved to decertify the collective action on the grounds that the named
plaintiffs are not similarly situated to the opt-in plaintiffs. That same day, class
plaintiffs moved to certify six Rule 23(b)(3) classes corresponding to the six states
in which the class representatives worked. On March 29, 2017, the district court
issued an opinion and order denying class plaintiffs' motion for class certification
and granting Chipotle's motion to decertify the collective action. See generally
Scott, 2017 WL 1287512. As to the motion for class certification, the district court
held that although class plaintiffs satisfied Rule 23(a)'s threshold requirements of
numerosity, commonality, typicality, and adequacy, Scott, 2017 WL 1287512, at
1 The approximate number of represented individuals are based on May 2016
estimates generated by Chipotle's Compliance and Field People Support Director. This
figure may have changed because the classes are defined to include Apprentices
employed through "the date of final judgment."
8
*3, they failed to satisfy Rule 23(b)(3)'s requirements of predominance and
superiority, id. at *4-8. According to the district court, class plaintiffs established
commonality because "the question of whether Apprentices were misclassified as
exempt employees is common to all class members [and] can be answered with
common proof." Id. at *3. The court based this determination on the fact that (1)
"Chipotle uniformly classified all Apprentices as exempt," (2) "Chipotle has an
expectation that the core duties of the apprentice is the same regardless of the
market in which an Apprentice works," and (3) "Chipotle uses a single job
description for all Apprentices that lists 'principal accountabilities.'" Id. The
district court found these facts to be "unquestionably probative of whether an
employee is properly classified as exempt." Id. (internal quotation marks
omitted).
Ultimately, however, the district court concluded that these common
questions were outweighed by individualized ones surrounding each plaintiff's
primary duty under Labor Department regulations. Id. at *4. The district court
summarized each of the named plaintiffs' testimony regarding their primary
duty and found the testimony to be "internally inconsistent and distinguishable."
Id. It also analyzed the testimony of the opt-in plaintiffs as to a number of the
9
relevant Labor Department criteria for determining exemptions -- involvement in
personnel decisions, scheduling authority, employee supervision and training,
and amount of time spent on managerial tasks -- and found that the testimony
"rang dissonantly from the record," as some Apprentices recounted
independently running their own stores while others testified to exercising very
few, if any, managerial duties. Id. at *4-7. Thus, while the "Apprentices' range of
managerial tasks" and "range of manual labor tasks" were "similar," the district
court concluded that the "disparate accounts from Apprentices" and the
"individualized proof . . . needed to establish each class member's entitlement to
relief" rendered class plaintiffs' claims ill-suited to the class action procedures of
Rule 23(b)(3). Id. at *4, 8.
With respect to Chipotle's motion to decertify the collective action,
the district court considered whether named plaintiffs were "similarly situated"
to the opt-in plaintiffs by considering the following factors: "(1) disparate factual
and employment settings of the individual plaintiffs; (2) defenses available to
defendants which appear to be individual to each plaintiff; and (3) fairness and
procedural considerations counseling for or against collective action treatment."
10
Id. at *8 (citing Hernandez v. Fresh Diet, Inc., No. 12-cv-4339, 2014 WL 5039431, at
*3 (S.D.N.Y. Sept. 29, 2014)). 2
In analyzing the first factor -- disparate employment settings -- the
district court noted that "[c]ourts have recognized that the 'similarly situated'
analysis for purposes of the FLSA certification can be viewed, in some respects,
as a sliding scale. In other words, the more opt-ins there are in the class, the
more the analysis under § 216(b) will mirror the analysis under Rule 23." Id.
(quoting Indergit v. Rite Aid Corp., 293 F.R.D. 632, 651 (S.D.N.Y. 2013)). The court
then concluded that "Apprentices had vastly different levels and amounts of
authority in exercising managerial tasks" and noted that "disparities in job
duties" are "axiomatic considering that the 516 opt-in plaintiffs worked at 37
states across Chipotle's nine geographic regions." Id. at *8-9. The district court
considered the second and third factors -- defenses and procedural fairness --
together, and concluded that "it would be difficult for Chipotle to rely on
'representative proof' while asserting its defenses." Id. at * 9. Accordingly, the
2 In doing so, the district court was applying the second step of the two-tier
approach to determining whether named plaintiffs are similarly situated to op-in
plaintiffs. See Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). See
pp. 27-28 infra. The district court had applied step one when it conditionally certified
the collective action on June 30, 2013.
11
district court held that the named plaintiffs were not similarly situated to opt-in
plaintiffs and ordered the conditionally certified collective action to be
decertified and the claims of the opt-in plaintiffs to be dismissed without
prejudice. Id. at *9
This appeal followed. We granted class plaintiffs leave to appeal the
denial of class certification pursuant to Rule 23(f), and we granted collective
plaintiffs leave to appeal pursuant to 28 U.S.C. § 1292(b).
DISCUSSION
We begin with an overview of hybrid FLSA and state overtime
misclassification suits. We then discuss the district court's denial of class
certification and decertification of the FLSA collective action in turn.
I. Hybrid Class and Collective Actions
"Because FLSA and [state law] claims usually revolve around the
same set of facts, plaintiffs frequently bring both types of claims together in a
single action using the procedural mechanisms available under 29 U.S.C. § 216(b)
to pursue the FLSA claims as a collective action and under Rule 23 to pursue the
[state law] claims as a class action under the district court's supplemental
12
jurisdiction." Shahriar v. Smith & Wollensky Rest. Grp. Inc., 659 F.3d 234, 244 (2d
Cir. 2011).
In this hybrid class and collective action, plaintiffs claim that they
worked overtime, they were legally entitled under state and federal law to
overtime pay, and Chipotle denied them such payment. The crux of the dispute
is whether plaintiffs were entitled to overtime under the FLSA and state labor
laws. The answer to this question turns on whether Chipotle improperly
classified plaintiffs as exempt employees under Labor Department guidelines
and parallel state law, "which in turn will require the district court to decide a
number of subsidiary questions," Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir.
2010) (internal quotation marks omitted), as discussed below.
A. The FLSA
Under the FLSA, employers are required to pay employees who
work over forty hours per week "not less than one and one-half times the regular
rate at which [the employees are] employed" for those overtime hours. 29 U.S.C.
§ 207(a)(1). This requirement is subject to certain exemptions based on employee
classification. As relevant here, the FLSA exempts from the overtime
13
requirement "employee[s] employed in a bona fide executive [or] administrative
. . . capacity." 29 U.S.C. § 213(a)(1).
Administrative regulations classify employees as "executive" if (1)
they are "[c]ompensated on a salary or fee basis," (2) their "primary duty is
management of the enterprise . . . or of a customarily recognized department or
subdivision thereof," (3) they "customarily and regularly direct[] the work of two
or more other employees," and (4) they "ha[ve] the authority to hire or fire other
employees or" if their "suggestions and recommendations" on personnel
decisions "are given particular weight." 29 C.F.R. § 541.100(a). The second
element -- whether an employee's primary duty is managerial in nature --
generally requires consideration of activities such as
interviewing, selecting, and training of employees; setting
and adjusting their rates of pay and hours of work; directing
the work of employees; maintaining production or sales
records for use in supervision or control; appraising
employees' productivity and efficiency for the purpose of
recommending promotions or other changes in status;
handling employee complaints and grievances; disciplining
employees; planning the work; determining the techniques
to be used; apportioning the work among the employees;
determining the type of materials, supplies, machinery,
equipment or tools to be used or merchandise to be bought,
stocked and sold; controlling the flow and distribution of
14
materials or merchandise and supplies; providing for the
safety and security of the employees or the property;
planning and controlling the budget; and monitoring or
implementing legal compliance measures.
29 C.F.R. § 541.102.
Regulations classify employees as "administrative" if (1) they are
"[c]ompensated on a salary basis," (2) their "primary duty is the performance of
office or non-manual work directly related to the management or general
business operations of the employer or the employer's customers," and (3) their
"primary duty includes the exercise of discretion and independent judgment
with respect to matters of significance." 29 C.F.R. § 541.200(a). The second
element -- whether the employee's primary duty is directly related to
management -- requires consideration of whether the employee "perform[s]
work directly related to assisting with the running or servicing of the business, as
distinguished . . . from working on a manufacturing production line or selling a
product in a retail or service establishment." 29 C.F.R. § 541.201(a).
The applicability of both exemptions turns on the "primary duty" of
an employee. See 29. C.F.R. § 541.2 (providing that "[t]he exempt or nonexempt
status of any particular employee must be determined on the basis of whether
the employee's salary and duties meet the requirements of the regulations"
15
defining executive and administrative employees). The regulations make clear
that these questions "should be resolved by examining the employees' actual job
characteristics and duties." Myers, 624 F.3d at 548; see also 29 C.F.R. § 541.700(a)
(providing that determining an employee's "primary duty" requires analysis of
"all the facts in a particular case," looking to the "principal, main, major or most
important duty that the employee performs"). Among other things, courts are to
consider the following factors in assessing an employee's primary duty:
the relative importance of the exempt duties as compared
with other types of duties; the amount of time spent
performing exempt work; the employee's relative freedom
from direct supervision; and the relationship between the
employee's salary and the wages paid to other employees for
the kind of nonexempt work performed by the employee.
29 C.F.R. § 541.700(a). Although the amount of time spent performing exempt
work is not dispositive, it "can be a useful guide." Id. § 541.700(b). "Thus,
employees who spend more than 50 percent of their time performing exempt
work will generally satisfy the primary duty requirement." Id.
"The exemption question under the FLSA is a mixed question of law
and fact. The question of how the employees spent their working time is a
question of fact. The question of whether their particular activities excluded
them from the overtime benefits of the FLSA is a question of law." Pippins v.
16
KPMG, LLP, 759 F.3d 235, 239 (2d Cir. 2014) (quoting Ramos v. Baldor Specialty
Foods, Inc., 687 F.3d 554, 559 (2d Cir. 2012)).
B. State Overtime Law
State exemption criteria in the six states implicated in the class
plaintiffs' claims largely track the FLSA. 3 Indeed, Chipotle conceded below that
state "executive/administrative exemption[s] . . . , unless specifically noted,
parallel the analysis set forth under the FLSA." Dkt. No. 1100, at 22. There are,
however, some minor differences. As Chipotle notes, whereas under federal law
the amount of time an employee spends performing an activity is merely "a
useful guide" to determining that employee's primary duty, see 29 C.F.R.
§ 541.700(b), Colorado and Washington have strict percentage limitations
governing how much time an employee can spend on non-exempt activities and
still properly be considered an exempt employee, see 7 Colo. Code Regs. § 1103-
1.5(b) (providing that overtime law only applies only if the employee spends "a
minimum of 50% of the workweek in duties directly related to supervision");
Wash. Admin. Code § 296-128-510(5) (providing that overtime law applies only if
3 See N.Y. Comp. Codes R. & Regs. Tit. 12, §§ 146-1.4, 146-1.6; N.Y. Lab. Law § 195
(New York); Mo. Rev. Stat. § 290.527.1 (Missouri); 820 Ill. Comp. Stat. § 105/4a (Illinois);
N.C. Gen. Stat. § 95-25.22(a1); 13 N.C. Admin. Code § 12.080 (North Carolina); see also
Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 n.5 (2d Cir. 2013).
17
the employee "does not devote as much as 40% . . . of his hours worked . . . to
activities which are not directly and closely related" to the performance of
managerial work). Thus, the exemption analysis under state law is largely the
same as the analysis under the FLSA, subject to these minor caveats.
II. Denial of Class Certification
Class plaintiffs argue that the district court, in concluding that they
failed to establish predominance and superiority, committed legal error and
relied on clearly erroneous facts. For the reasons that follow, we conclude that
the district court did not commit reversible error.
A. Standard of Review
We review a district court order denying class certification for abuse
of discretion as to the ultimate decision and as to each of the Rule 23
requirements. Myers, 624 F.3d at 547. We review legal conclusions de novo and
factual findings for clear error. Id. This standard means that the district court "'is
empowered to make a decision -- of its choosing -- that falls within a range of
permissible decisions,' and we will only find 'abuse' when the district court's
decision 'rests on an error of law or a clearly erroneous factual finding, or its
decision cannot be located within the range of permissible decisions.'" Id.
18
(alterations omitted) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d
Cir. 2001)).
B. Applicable Law
Plaintiffs seeking certification of a Rule 23(b)(3) damages class action
must first establish numerosity, commonality, typicality, and adequacy of
representation, and then predominance of common questions of law or fact and
the superiority of a class action over other procedures. Fed. R. Civ. P. 23(a),
(b)(3). The "predominance" requirement of Rule 23(b)(3) "tests whether
proposed classes are sufficiently cohesive to warrant adjudication by
representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The
requirement is satisfied "if resolution of some of the legal or factual questions
that qualify each class member's case as a genuine controversy can be achieved
through generalized proof, and if these particular issues are more substantial
than the issues subject only to individualized proof." Moore v. PaineWebber, Inc.,
306 F.3d 1247, 1252 (2d Cir. 2002); see also Myers, 624 F.3d at 547.
A court examining predominance must assess (1) "the elements of
the claims and defenses to be litigated," (2) "whether generalized evidence could
be offered to prove those elements on a class-wide basis or whether
19
individualized proof will be needed to establish each class member's entitlement
to relief," and (3) "whether the common issues can profitably be tried on a class[-]
wide basis, or whether they will be overwhelmed by individual issues." Johnson
v. Nextel Commc'ns Inc., 780 F.3d 128, 138 (2d Cir. 2015).
The question whether employees are entitled to overtime under the
FLSA is "a complex, disputed issue, and its resolution turns on exemption, which
in turn will require the district court to decide a number of subsidiary questions
involving whether plaintiffs fall within the Labor Department's criteria for
'employees employed in a bona fide executive [or administrative] capacity.'"
Myers, 624 F.3d at 548 (quoting 29 U.S.C. § 213(a)(1)). "Significantly, the
regulations make clear that these questions should be resolved by examining the
employees' actual job characteristics and duties." Id. "Economies of time, effort,
and expense in fully resolving each plaintiff's claim will only be served, and the
predominance requirement satisfied, if the plaintiffs can show that some [of the
subsidiary questions necessary to determining exemption] can be answered with
respect to the members of the class as a whole through generalized proof and
that those common issues are more substantial than individual ones." Id. at 549
(internal quotation marks and citations omitted).
20
C. Application
Class plaintiffs argue that the district court's conclusion that
predominance was not met was erroneous because the court (1) made clearly
erroneous factual findings regarding the distinctions among class members, (2)
rested its conclusion on an erroneous view of the law that common questions
cannot predominate if some workers perform managerial tasks that others do not
perform, and (3) failed to weigh the individualized evidence against the common
evidence. We conclude that the district court did not rest its decision on an error
of law or a clear error of fact. Nor did it abuse its discretion. Accordingly, we
need not address class plaintiffs' superiority arguments. See Myers, 624 F.3d at
548 (noting the "need only [to] address the 'predominance' requirement" because
the finding of a lack of predominance was not error).
The district court began its predominance analysis by
acknowledging that "Apprentices' range of managerial tasks such as employment
decisions, scheduling, inventory, performance evaluations" and "range of manual
labor tasks such as working the line, serving customers, prepping, grilling, and
running the register" were "similar." Scott, 2017 WL 1287512, at *4 (emphasis
added). Indeed, this finding, combined with Chipotle's uniform job description
21
and its uniform classification of Apprentices as exempt employees, formed the
basis of the district court's conclusion that class plaintiffs had established
commonality. See id. at *3. But the court went on to explain that although the
range of tasks were largely the same across class plaintiffs, the primary duty
performed by class plaintiffs -- the dispositive question of the exemption inquiry
-- was not adequately similar. Id. at *4.
The court analyzed the testimony of the named plaintiffs regarding
their primary duty and found that the testimony was "internally inconsistent and
distinguishable from one another." Id. at *4. For example, whereas named
plaintiffs Scott and Parker did not have any say in hiring and claimed no role in
employee development or discipline, named plaintiffs Higgs and Medina made
hiring and termination recommendations and trained employees. Id. at *5.
The court also analyzed the testimony of putative class members
regarding four key categories of the "primary duty" inquiry, "[n]otwithstanding
the internally inconsistent testimony among the named Plaintiffs." Id. at *6. It
concluded that the putative class members' testimony also "rang dissonantly
from the record." Id. As to personnel decisions, one of the tasks considered
managerial under Labor Department regulation, see 29 C.F.R. § 541.102, the
22
district court found that while "[m]any apprentices played a significant role in
personnel decisions," others "testified that they had no involvement" in such
decisions, Scott, 2017 WL 1287512, at *6. As to scheduling authority, also a task
considered to be managerial under Labor Department guidelines, see 29 C.F.R.
§ 541.102, the district court found that while "[s]ome Apprentices prepared and
disbursed schedules without . . . approval from higher management," others "did
not perform this managerial task, because they did not believe they had the
authority to do so," Scott, 2017 WL 1287512, at *6. The district court found similar
inconsistencies across the testimony of the putative class members with respect
to two other important consideration under the guidelines: employee
supervision and training, and the amount of time spent on managerial tasks. See
id. at *7-8.
On the basis of these factual determinations, the district court
concluded that despite the common questions of fact -- including Chipotle's
blanket classification of Apprentices, the outside consultant's analysis concerning
exemption, the uniform Apprentice job description, and Chipotle's expectation
that Apprentices perform the same responsibility -- "[t]he disparate accounts
from Apprentices prove[d] fatal to the predominance inquiry." Id. at *8. Thus,
23
the district court concluded that class plaintiffs failed to meet their burden of
proving predominance.
Class plaintiffs argue that this conclusion rested on clearly erroneous
factual findings. We are not persuaded. Although nominally an argument about
clearly erroneous facts, this assertion boils down to a disagreement with the
district court's ultimate conclusion. We can discern no clearly erroneous facts
relied upon in the district court's analysis; it based its legal conclusion on a fair
interpretation of the facts after thoroughly parsing the voluminous record in the
case. While reasonable minds could disagree, on the record before us we cannot
say that the district court's factual findings were clearly erroneous or that its
conclusion was outside the range of permissible decisions.
Class plaintiffs also argue, in cursory fashion, that the district court
committed legal error by (a) assuming that common questions cannot
predominate if some workers perform managerial tasks that others do not
perform and (b) failing to weigh the individualized evidence against the
common evidence. We disagree that the district court committed such errors. It
correctly cited the law of class certification and applied that law to the facts of the
case. It concluded that predominance was not met only after weighing the
24
individualized issues against the common ones and concluding that the
individualized issues proved "fatal" to the balancing. Scott, 2017 WL 1287512, at
*8. Like class plaintiffs' argument that the district court clearly erred in its
construction of the facts, these legal arguments are, in effect, an effort to couch
class plaintiffs' disagreement with the district court's reasoned decision as an
error of law. But, as discussed above, the district court's conclusion fell within
the range of permissible decisions committed to its discretion.
Accordingly, we affirm the district court's denial of class plaintiffs'
motion to certify the proposed class actions.
III. Collective Action Decertification
Collective plaintiffs principally argue that the district court
committed legal error by improperly analogizing the standard for maintaining a
collective action under the FLSA to Rule 23 procedure, and relying on that
improper analogy in concluding that named plaintiffs and opt-in plaintiffs are
not "similarly situated." For the reasons that follow, we agree.
A. Standard of Review
We have not ruled on the appropriate standard of review to be
applied to a district court's decertification of a conditionally certified collective
25
action. The parties agree, as do we, that "[l]ike the district court's certification
determination pursuant to Rule 23," we review its decision to decertify an FLSA
collective action for abuse of discretion. See Glatt v. Fox Searchlight Pictures, Inc.,
811 F.3d 528, 539 (2d Cir. 2015). Thus, "we will only find 'abuse' when the district
court's decision 'rests on an error of law or a clearly erroneous factual finding, or
its decision cannot be located within the range of permissible decisions.'" Myers,
624 F.3d at 547 (alterations omitted) (quoting Zervos, 252 F.3d at 169). We review
de novo the district court's selection and application of the legal standards that led
to its conclusion to decertify. Parker v. Time Warner Entm't Co., 331 F.3d 13, 18
(2d Cir. 2003) (discussing Rule 23 standard of review).
B. Applicable Law
The FLSA provides that an action to recoup unpaid overtime wages
may be maintained against any employer . . . 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 become such a party and such consent is filed
in the court in which such action is brought.
29 U.S.C. § 216(b) (emphasis added). The Supreme Court has characterized
§ 216(b) as a "joinder process." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75
n.1 (2013). Rather than providing for a mere procedural mechanism, as is the
26
case with Rule 23, § 216(b) establishes a "right . . . to bring an action by or on
behalf of any employee, and [a] right of any employee to become a party plaintiff
to any such action," so long as certain preconditions are met. 29 U.S.C. § 216(b)
(emphasis added); see also Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 173
(1989) (noting that Congress gave employees the "right" to proceed collectively)
One of the principal conditions to proceeding collectively under
§ 216(b) is that the named plaintiffs be "similarly situated" to the opt-in "party
plaintiff[s]." See 29 U.S.C. § 216(b). Procedurally, we have endorsed a two-step
process for certifying FLSA collective actions based on the "similarly situated"
requirement:
At step one, the district court permits a notice to be sent to
potential opt-in plaintiffs if the named plaintiffs make a
modest factual showing that they and others together were
victims of a common policy or plan that violated the law. At
step two, with the benefit of additional factual development,
the district court determines whether the collective action
may go forward by determining whether the opt-in plaintiffs
are in fact similarly situated to the named plaintiffs.
Glatt, 811 F.3d at 540 (citing Myers, 624 F.3d at 555). Substantively, however, we
have said little regarding what it means to be "similarly situated" and how
district courts should analyze whether named and party plaintiffs are so situated,
particularly at Step Two.
27
1. The "Similarly Situated" Requirement
The FLSA does not define the term "similarly situated." The
Supreme Court, analyzing the same "similarly situated" standard of § 216(b) that
is incorporated into both the FLSA and the Age Discrimination in Employment
Act (the "ADEA"), has held that Congress's goal in granting employees the right
to proceed as a collective was to provide them "the advantage of lower
individual costs to vindicate rights by the pooling of resources." Hoffmann-La
Roche Inc., 493 U.S. at 170. This results in the "efficient resolution in one
proceeding of common issues of law and fact arising from the same alleged"
FLSA violation. See id.
This result -- the efficient resolution in one proceeding of common
issues of law and fact arising from the same alleged FLSA violation -- can only be
achieved to the extent that named plaintiffs and opt-in plaintiffs share one or
more issues of law or fact that are material to the disposition of their FLSA
claims. Thus, to be "similarly situated" means that named plaintiffs and opt-in
plaintiffs are alike with regard to some material aspect of their litigation. See
Campbell v. City of Los Angeles, 903 F.3d 1090, 1114 (9th Cir. 2018). That is, party
plaintiffs are similarly situated, and may proceed in a collective, to the extent
28
they share a similar issue of law or fact material to the disposition of their FLSA
claims. 4 It follows that if named plaintiffs and party plaintiffs share legal or
factual similarities material to the disposition of their claims, "dissimilarities in
other respects should not defeat collective treatment." Id. If the opt-in plaintiffs
are similar to the named plaintiffs in some respects material to the disposition of
their claims, collective treatment may be to that extent appropriate, as it may to
that extent facilitate the collective litigation of the party plaintiffs' claims. 5
This similarly situated standard is consistent with that endorsed by
our sister circuits as well as district courts within this circuit. See, e.g., Campbell,
903 F.3d at 1117 (holding that, at Step Two, "[p]arty plaintiffs are similarly
situated, and may proceed in a collective, to the extent they share a similar issue
of law or fact material to the disposition of their FLSA claims"); Halle v. W. Penn
4 In contending that we have "equat[ed] 'similarly situated' with 'any similarity,'"
Dissent at 2, the Dissent criticizes a standard that -- although helpful to the critique -- is
nowhere to be found in our text. As clearly set forth above, we do not hold that the
named plaintiffs and opt-in plaintiffs are "similarly situated" for purposes of a collective
action under 29 U.S.C. § 216(b) when they share "any similarity"; rather, we hold that
the standard is met when there is similarity with respect to "an issue of law or fact
material to the disposition of their FLSA claim." Contrary to the Dissent's assertions,
the standard established here is meaningfully circumscribed.
5 District courts are well equipped to manage cases in this way. For example, Rule
42 provides for the possibility of partial consolidation for trial, to the extent separate
actions involve common questions of law or fact. Fed. R. Civ. P. 42(a)(1).
29
Allegheny Health Sys. Inc., 842 F.3d 215, 226 (3d Cir. 2016) (noting that, at Step
Two, "[b]eing 'similarly situated' means that one is subjected to some common
employer practice that, if proved, would help demonstrate a violation of the
FLSA" (internal quotation marks omitted)); McGlone v. Contract Callers, Inc., 49 F.
Supp. 3d 364, 367 (S.D.N.Y. 2014) (noting that, at Step Two, named and opt-in
plaintiffs are similarly situated to the extent they "were common victims of a
FLSA violation pursuant to a systematically-applied company policy or practice
such that there exist common questions of law and fact that justify
representational litigation" (quoting Pefanis v. Westway Diner, Inc., No. 08-cv-
7813, 2010 WL 3564426, at *4 (S.D.N.Y. Sept. 7, 2010)); see also Newberg on Class
Actions § 23:39 (5th ed. 2017) (noting that under § 216(b), the plaintiffs must
demonstrate that they have all been "subjected to some common employer
practice that, if proved, would help demonstrate a violation of the FLSA"). 6
6 The Dissent goes to great lengths to distinguish these cases and argue that the
standard we set forth today is "newly minted." Dissent at 1. But providing clarity is not
making something new. The standard we adopt here is plainly compelled by the
statutory text and Supreme Court precedent and has been endorsed by courts outside of
this circuit along with lower courts within this Circuit. In selectively quoting language
from these opinions to argue that they nonetheless employ elements of the ad hoc test,
see Dissent at 4-5, the Dissent only further underscores the absence of a clear standard,
and the need for clear guidance from this Court.
30
2. The "Ad Hoc" Approach
The majority of courts in this Circuit, including the district court
below, employ what has been termed an "ad hoc" approach to the similarly
situated inquiry at Step Two. 7 Under this flexible approach, courts consider the
"(1) disparate factual and employment settings of the individual plaintiffs; (2)
defenses available to defendants which appear to be individual to each plaintiff;
and (3) fairness and procedural considerations counseling for or against
collective action treatment." See, e.g., Buehlman v. Ide Pontiac, Inc., 345 F. Supp. 3d
305, 313 (W.D.N.Y. 2018). Thus, rather than considering the ways in which the
opt-in plaintiffs are similar in ways material to the disposition of their FLSA
claims, district courts employing the ad hoc factors consider the ways in which
the plaintiffs are factually disparate and the defenses are individualized.
We question whether the ad hoc approach is consistent with the
notion that party plaintiffs are similarly situated, and may proceed in a
collective, to the extent they share a similar issue of law or fact material to the
7 The ad hoc approach appears to have originated in Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987), in the context of an ADEA claim. There, the district court
considered collective plaintiffs' "disparate employment situations"; defendant's
"defenses and the applicability of the defenses to the instant facts"; and, more generally,
"considerations of fairness [and] efficiency" in concluding that collective plaintiffs were
not similarly situated at Step Two. Id. at 361-72.
31
disposition of their FLSA claims. First, it is abstract in a way that "risks losing
sight of the statute underlying it" by "tend[ing] to explain what the term
'similarly situated' does not mean [rather than] what it does" mean. Campbell, 903
F.3d at 1114. Second, its "open-ended inquiry into the procedural benefits of
collective action invites courts to import, through a back door, requirements with
no application to the FLSA," like Rule 23(a)'s requirements of adequacy and
typicality and Rule 23(b)(3) requirements of superiority and predominance. Id. at
1115. This flaw undermines what is supposed to be one of the chief advantages
of the ad hoc approach, that "it is not tied to the Rule 23 standards." Thiessen v.
Gen. Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); accord Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1260 n.38 (11th Cir. 2008) (citing cases);
Scott, 2017 WL 1287512, at *8 (employing the ad hoc approach "[t]o avoid
conflating § 216(b) collective certification with Rule 23"). Indeed, as discussed
below, the district court's ad hoc analysis in this case suffered from this very
flaw. It imported through the back door "requirements with no application to
the FLSA" -- namely, that because there were a relatively large number of opt-in
plaintiffs, the "similarly situated" inquiry "mirrored" the requirements of Rule 23.
32
See infra Part III.C. We discuss this "sliding scale" analogy to Rule 23 in more
detail.
3. The "Sliding Scale" Analogy
Some district courts in this circuit, including the district court below,
have grafted onto the ad hoc approach additional considerations. One such
consideration is what collective plaintiffs describe as a "sliding scale" analogy,
because the district courts employing the analogy reason that "[t]he similarly
situated analysis can be viewed, in some respects, as a sliding scale." Gardner v.
W. Beef Props., Inc., No. 7-cv-2345, 2013 WL 1629299, at *4, 6 (E.D.N.Y. Mar. 25,
2013). The analogy is straightforward: "The more opt-ins there are in the class,
the more the analysis under § 216(b) will mirror the analysis under Rule 23." Id.
at *6. As a result, the court will import the more rigorous requirements of Rule
23 into the similarly situated inquiry in rough proportion to the number
plaintiffs who have chosen to opt-in. In so doing, the courts relying on this
analogy conflate the requirements for class certification under Rule 23 with the
requirements to proceed as a collective under § 216(b). 8
8 See, e.g., Mendez v. U.S. Nonwovens Corp., No. 12-5583, 2016 WL 1306551, at *4
(E.D.N.Y. Mar. 31, 2016) (noting that "[a]lthough the standard for establishing that the
collective members are similarly situated under the FLSA is less stringent than the Rule
23 commonality standard, courts in this district have noted that these two standards are
33
This has led, in turn, to "courts assessing the predominance
requirement . . . almost always reach[ing] the same conclusion about whether
proceeding collectively is appropriate." Whilliam C. Jhaveri-Weeks & Austin
Webbert, Class Actions Under Rule 23 and Collective Actions Under the Fair Labor
Standards Act, 23 Geo. J. on Poverty L. & Pol'y 233, 264 (2016); see also Ruiz v.
CitiBank, N.A., 93 F. Supp. 3d 279, 298-99 (S.D.N.Y. 2015) ("[I]t is not mere
coincidence that courts facing parallel motions to decertify an FLSA collective
action under Section 216(b) and to certify a class action under Rule 23 have
tended to allow either both actions or neither to proceed on a collective basis.").
For the reasons discussed below, we hold that analogies to Rule 23,
including the sliding scale analogy, are inconsistent with the language of § 216(b)
and that the question of whether plaintiffs may proceed as a collective under the
FLSA is to be analyzed under the separate and independent requirements of
§ 216(b).
functionally similar"); Ruiz v. CitiBank, N.A., 93 F. Supp. 3d 279, 298-99 (S.D.N.Y. 2015)
(noting the "harmony of animating principles" underlying collective actions under
§ 216(b) and class actions proceeding under Rule 23); Indergit v. Rite Aid Corp., 293
F.R.D. 632, 651 (S.D.N.Y. 2013) (noting that although "conditional certification,
decertification, and Rule 23 class certification are subject to disparate legal standards,"
courts nonetheless "have recognized that the 'similarly situated' analysis for purposes of
FLSA certification can be viewed, in some respects, as a sliding scale").
34
First and foremost, it is already well established that the FLSA's
"similarly situated" requirement is "independent of, and unrelated to" Rule 23's
requirements, Kern v. Siemens Corp., 393 F.3d 120, 128 (2d Cir. 2004), and that it is
"quite distinct" from "the much higher threshold of demonstrating that common
questions of law and fact will 'predominate' for Rule 23 purposes," Myers, 624
F.3d at 555-56. Nearly every circuit to consider the relationship between the
modern Rule 23 and § 216(b) has reached the same conclusion. See Campbell, 903
F.3d at 1111 (holding that § 216(b) analogies to Rule 23 "lack[] support in either
the FLSA or the Federal Rules of Civil Procedure"); Calderone v. Scott, 838 F.3d
1101, 1104 (11th Cir. 2016) (describing Rule 23 as "more demanding" than
§ 216(b)); O'Brien v. Ed Connelly Enters., Inc., 575 F.3d 567, 584-85 (6th Cir. 2009)
(describing Rule 23 as "a more stringent standard" than § 216(b)); Thiessen v. Gen.
Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) ("Congress clearly chose
not to have the Rule 23 standards apply to [collective actions], and instead
adopted the 'similarly situated' standard. To now interpret this 'similarly
situated' standard by simply incorporating the requirements of Rule 23 . . .
would effectively ignore Congress' directive."); LaChapelle v. Owens-Illinois, Inc.,
513 F.2d 286, 289 (5th Cir. 1975) (describing actions under § 216(b) and Rule 23 as
35
"mutually exclusive and irreconcilable"); see also Lusardi v. Lechner, 855 F.2d 1062,
1078 (3d Cir. 1988). But see Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772
(7th Cir. 2013) (noting that "the provisions of Rule 23 are intended to promote
efficiency . . . , and in that regard are as relevant to collective actions as to class
actions" because "there isn't a good reason to have different standards for the
certification of the two different types of action[s]").
This conclusion is supported by the language and structure of
§ 216(b) and the modern Rule 23, which bear little resemblance to each other.
Compare 29 U.S.C. § 216(b), with Fed. R. Civ. P. 23. Under § 216(b) of the FLSA,
employees have a right to maintain a collective action "for and in behalf of . . .
themselves and other employees similarly situated." Section 216(b) has nothing
comparable to Rule 23(b)(3)'s requirements of predominance or superiority. And
Rule 23's requirements of adequacy and typicality are intended to protect the due
process rights of absent class members, which is not a consideration in a
nonrepresentative action such as a collective action under § 216(b). See Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985); see also Campbell, 903 F.3d at
1112. Indeed, Congress amended § 216(b) in 1947 expressly to put an end to
representational litigation in the context of actions proceeding under §216(b), and
36
at the same time required that workers affirmatively opt-in by filing written
consent as a condition to proceeding as a collective. Compare Fair Labor
Standards Act of 1938, ch. 676, 52 Stat. 1060, 1069 (1938) (codified at 29 U.S.C.
§ 216(b)) (providing that employees proceeding under § 216(b) may "designate
an agent or representative to maintain such action for and in behalf of all
employees similarly situated"), with Portal to Portal Act of 1947, Pub. L. No. 80-
49, 61 Stat. 84, 87 (1947) (codified at 29 U.S.C. § 216(b) (1946 Supp. II)) (banning
representative actions and providing that "[n]o employee shall be a party
plaintiff to any such action unless he gives consent in writing to become such a
party and such consent is filed in the court in which such action is brought").
In 1966, Rule 23 was amended to resemble its modern form,
including for the first time Rule 23(a)'s requirements of commonality, typicality,
numerosity, and adequacy, and Rule 23(b)(3)'s requirements of predominance
and superiority. Fed. R. Civ. P. 23 (1966). Along with these revisions, the
drafters also omitted the opt-in requirement contained in the former "spurious"
class action device and replaced it with Rule 23(b)(3)'s opt-out requirement. Id.
The opt-out requirement of the modern Rule 23(b)(3) directly conflicts with the
express opt-in requirement of § 216(b). Accordingly, the drafters of the 1966
37
revisions explicitly noted that "the present provisions of [§ 216(b)] are not
intended to be affected." Fed. R. Civ. P. 23 advisory committee's notes to 1966
amendment; see also Knepper v. Rite Aid Corp., 675 F.3d 249, 257 (3d Cir. 2012).
Moreover, Rule 23 and § 216(b) serve fundamentally different
purposes. Rule 23 provides a general procedural mechanism for the resolution
of claims on a class-wide basis subject to the sound discretion of the district
court. See Fed. R. Civ. P. 23. Section 216(b), by contrast, is tailored specifically to
vindicating federal labor rights, and where the conditions of § 216(b) are met,
employees have a substantive "right" to proceed as a collective, a right that does
not exist under Rule 23. See 29 U.S.C. § 216(b); see also Hoffman-La Roche, 493 U.S.
at 173; Monroe v. FTS USA, LLC, 860 F.3d 389, 396–97 (6th Cir. 2017); O’Brien, 575
F.3d at 586.
We conclude by noting that "the FLSA not only imposes a lower bar
than Rule 23, it imposes a bar lower in some sense even than Rules 20 and 42,
which set forth the relatively loose requirements for permissive joinder and
consolidation at trial." Campbell, 903 F.3d at 1112. "Whereas [Federal Rules of
Civil Procedure] 20 and 42 allow district courts discretion in granting joinder or
consolidation, the FLSA, which declares a right to proceed collectively on
38
satisfaction of certain conditions, does not." Id.; see also O’Brien, 575 F.3d at 584-
85; Grayson, 79 F.3d at 1095-96; Lusardi, 855 F.2d at 1078. Furthermore, joinder
under Rule 20 requires, in addition to a common question of law or fact, that the
plaintiffs assert a right to relief arising from "the same transaction[ ] [or]
occurrence[]." Fed. R. Civ. P. 20(a)(1)(A). No such condition exists in the text of
the FLSA. See 29 U.S.C. § 216(b); see also Campbell, 903 F.3d at 1112.
For these reasons, we hold that the requirements for certifying a
class under Rule 23 are unrelated to and more stringent than the requirements
for "similarly situated" employees to proceed in a collective action under
§ 216(b). Accordingly, it is error for courts to equate the requirements of § 216(b)
with those of Rule 23 in assessing whether named plaintiffs are "similarly
situated" to opt-in plaintiffs under the FLSA.
C. Application
Collective plaintiffs principally argue that the district court
committed legal error in employing the "sliding scale" analogy to Rule 23 as it
improperly conflated § 216(b) with Rule 23 and that rule's more stringent
requirements. We agree.
39
After citing to the two-step approach endorsed by this Court in
Myers, the district court proceeded to analyze whether collective plaintiffs were
similarly situated using the ad hoc factors. Scott, 2017 WL 1287512, at *8. In its
discussion of the ad hoc factors, the district court noted that their use is intended
"[t]o avoid conflating § 216(b) collective certification with Rule 23." Id.
Despite this disclaimer, however, in the very next sentence of the
opinion the district court did just that -- conflated § 216(b) with Rule 23 -- in
analyzing the first ad hoc factor. The district court began its discussion of
collective plaintiffs' disparate employment settings by noting that "[c]ourts have
recognized that the 'similarly situated' analysis for purposes of the FLSA
certification can be viewed, in some respects, as a sliding scale. In other words,
the more opt-ins there are in the class, the more the analysis under § 216(b) will
mirror the analysis under Rule 23." Id. (quoting Indergit, 293 FR.D. at 651). In
doing so, the district court imported through the back door of this ad hoc
approach the more stringent requirements of Rule 23, which have no application
to the FLSA.
The district court assumed that the size of the collective required a
heightened level of scrutiny mirroring Rule 23, which necessarily weighed in
40
favor of decertification -- particularly because the district court had concluded
earlier in the same opinion that class plaintiffs failed to establish predominance
under Rule 23. Indeed, after invoking the "sliding scale" analogy, the court
proceeded to reference its conclusion with respect to predominance that
"Apprentices had vastly different levels and amounts of authority in exercising
managerial tasks." Id. The district court then held that "disparities in job duties"
are "axiomatic considering that the 516 opt-in plaintiffs worked at 37 states across
Chipotle's nine geographic regions." Id. at *9. On this basis, the district court
decertified the collective action.
This was error. In effect, the district court held that collective
plaintiffs could not be similarly situated because class plaintiffs' common issues
did not predominate over individualized ones. It is simply not the case that the
more opt-ins there are in the class, the more the analysis under § 216(b) will
mirror the analysis under Rule 23. Supra Part III.B.3; see also O'Brien, 575 F.3d at
584-85 (holding that the district court erred when it "implicitly and improperly
applied a Rule 23-type analysis" to the FLSA); Morgan, 551 F.3d at 1265 (noting
that "the size of an FLSA collective action does not, on its own, compel the
41
conclusion that" it should not be maintained). Accordingly, we vacate the
district court's decertification of the collective action and remand.
On remand, the district court shall reconsider whether named
plaintiff and opt-in plaintiffs are "similarly situated" -- that is, whether they share
one or more similar questions of law or fact material to the disposition of their
FLSA claims. In doing so, the district court shall take into account its conclusion
with respect to commonality that "the question of whether Apprentices were
misclassified as exempt employees is common to all class members because it can
be answered with common proof." Scott, 2017 WL 1287512, at *3. This
conclusion was based on the district court's findings that (1) "Chipotle uniformly
classified all Apprentices as exempt," (2) "Chipotle has an expectation that the
core duties of the Apprentice is the same," and (3) "Chipotle uses a single job
description for all Apprentices." Id. (internal quotation marks omitted). These
facts, the court concluded, are "unquestionably probative of whether an
employee is properly classified as exempt. " Id. (internal quotation marks
omitted).
Though these findings were made with respect to the class plaintiffs,
and though courts may not import the requirements of Rule 23 into their
42
application of § 216(b) in assessing whether named plaintiffs and opt-in plaintiffs
are similarly situated under the FLSA, these findings are relevant to collective
plaintiffs' argument that they are similarly situated. Indeed, the "common
question" requirement of Rule 23(a) and the "similarly situated" requirement of
§ 216(b) serve comparable ends: to identify those shared issues that will
collectively advance the litigation of multiple claims in a joint proceeding. 9 And
as the district court correctly noted, "the differences in the actual job duties of
Apprentices are 'better suited to the predominance inquiry . . . together with an
analysis of the Rule 23(b)(3) factors.'" Chipotle, 2017 WL 1287512, at *3 (quoting
Jacob v. Duane Reade, Inc., 289 F.R.D. 408, 415 (S.D.N.Y. 2013)). Thus, as the
district court seems to acknowledge, these differences will not prove fatal to the
"similarly situated" analysis in the same way they proved fatal to the
9 In analyzing commonality under Rule 23(a), "[w]hat matters . . . is not the raising
of common 'questions' -- even in droves -- but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the litigation."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). In analyzing whether the
"similarly situated" requirement is met under § 216(b), what matters is the extent to
which named plaintiffs and opt-in plaintiffs share a similar issue of law or fact material
to the disposition of their FLSA claims. See infra Part III.B.1.
We caution that despite these similarities, courts should not overly rely on Dukes
and other class action case law in considering collective actions. See 7B Wright & Miller,
Fed. Prac. & Proc. Civ. § 1807 (observing that district courts have "uniformly" rejected
the argument that Dukes affects the FLSA's "similarly situated" requirement).
43
predominance inquiry in this case. If named plaintiffs and opt-in plaintiffs are
similar in some respects material to the disposition of their claims, collective
treatment may be to that extent appropriate, as it may to that extent facilitate the
collective litigation of collective plaintiffs' claims.
Because the district court conflated the standards for maintaining a
collective action under § 216(b) and a class action under Rule 23, we vacate the
decision of the district court and remand for further proceedings consistent with
this opinion.
CONCLUSION
Accordingly, we AFFIRM the district court's denial of class
certification as to class plaintiffs' claims, we VACATE the district court's
decertification of the collective action, and we REMAND for further proceedings
consistent with this opinion.
44
Appendix
MARVINS GEORGES, FRANCISCO MAYORGA, KATHERINE FLANAGAN, LEAH
TURNER, JOSE RAFAEL LOPEZ, JUSTIN GRAZUNA, CHRIS HALLER, MICHAEL
CARVER, MICHAEL DMYTRYK, MARK DANNEMILLER, ASHLEY PAMPLIN,
ANTHONY BARTON, BRITTNEY MILLER, JAYSON GOLDSTEIN, AMANDA
MARKS, MICHAEL HAMILTON, JOSEPH F. DE MAYO, MATTHEW FLANDERS,
SARAH O. STRONG, STEPHEN PREISIGLLE, MARK A. WILSON, SHAWN T.
KURTZ, SHAKIRA HAWTHORNE, SUZANNE ANDERSON, EDMAR SOARES
SIMOES, JESUS HERNANDEZ, LISA JOHNSON, JOSE A. SANTIAGO, JOSHUA
COBAN, MARQUICE MARRERO, NELSON JOVEL AGUEDO DEJESUS, KELLI
WINICK, NATALIA BARKER, LUZ B. HENRIQUEZ, SHAWN GREEN, JOHNNY
GASPER, RUSSELL FLIDDY, EMILY GJERTSON, KEVIN CALLAHAN, RONALD E.
CONSELLO, JR., ALESIA WILLIAMS, STACY R. PENA, ALMA PULIDO, ANDREW J.
HIRSCH, THEODORE R. JACKSON, JR., DAWN AKASON, JAMES LEE PERKINS, III,
ZAIDA ORTIZ, MARIA VALENZVELA, NICOLE WATTS, DEREK A. GASSAWAY,
ERIC BUTTNER, ELIZABETH DIAZ, SARAH VALDERRAMA, MANDY L.
MCLOUGHLIN, JEREMY A. REESE, ALI SHEPPARD, MARIBEL M. MAHER,
STEFFRIN R. WINFREY, BRIAN D. ROGERS, VERONICA WELLS, ROBERT STEDEM,
JAVIER VALERIO, DANIELLE ROURKE, COREY PAULEY, CHRISTINE M. SVOREC,
HEATHER FANSHER, MICHAEL T. LEACH, ROSALIE MERRILL, (MALERONI),
BIVIANA ESPINOZA, ANGELICA ORTEGA, DUSTIN SCHREIBER, SPENCER
PARKER, SARA MURRAY, SCOTT RIEGER, EDWARD WRIGHT, GENE KAY,
RANDY JAMES DEAN, KEVIN ZARLEY, COREY TURNBULL, IVAN OLIVARES,
JAVIER VILLEGAS, SANDRA K. STEWART, LUZ MARTINEZ ACOSTA, KERSTINA
CAGGIANO, EDWARD TRIPLETT, CANDICE VANCAMP, LEONARDO
CERQUEIRA, BRANDON KELLER, BRANDON W. DORAN, CARLOS E. FLOUS
AURAYA, GLENN SHANK, CHAD KINSWORTHY, BERNARDU ESCOBAR PEREZ,
JAIME SAONA, JASON GILBERT, BRANDON WOMACK, RACHAEL CASCIANO,
RUSSELL BEHRMAN, PATRICIA ANN MOODY, ANDREW KAIS, BRATSSON E.
PINTO, SERGIO DANICO JUAREZ, RICARDO GARCIA, IAH MAROLS, SHANE
BARTON, JOSE PEREZ, BENJAMIN D. HOWARD, ADAM SHERRIS, ROBERTA
FACTOR, JONATHAN MARVIN, RACHEL SPALTH, MATT ROMMEL, DENISE
TATOM, EDWARD BOBB, JHONSON MORILLO, NATHANIEL J. CAMACHO,
CRYSTAL BERRY, SOCORRO JIMENEZ, DAVID EICH, MARIA MURZADO, ROBERT
FARMER, KRISTY BOWEN, KRISTIN LOMBARDI, TANNER L. RENNINGER,
MARICELA VENTURA, TARA WOOD, LAURA K. ORTEGA PEREZ, JASON LEIB,
MARVEZ ALEGRIA, CLARIBEL VEGA, REGINALD DOVE, JR., CHRISTOPHER
BASSFORD, JONATHAN STREETMAN, MARIA A. ARGUELLES, DAVID ORDONEZ,
45
MEAGAN U. CROWE, ALBERTO MENDOZA CHAVEZ, JOSH VENVERLON,
STEVEN H. STOWE, ERIC RIOS-FERMAN, MARC LINAMAN, ANA M. JIMENEZ,
JESSICA VILLEGAS, JAMES TOWNSEND, JACOB DUNCAN, ALEX D-B POON,
DANIEL BARBER, KELLIE SCHOENEMAN, ERIN DURKIN, GUILLERMO
MARTINEZ, JR., DEWAYNE GARDNER, JENINE MEISNER, LAURA KNIGHT,
JOSHUA DAMERON, JR., ROSS ARCE, SHAKIRA FREEMAN, CAMNLE BURNEVIK,
VANESSA ACEVEDO, BRANDON GILLISSIE, KEVIN STECKE, ANGELA WICKEIF,
SUSAN C. STRUNK, CHRISTIAN ARMENTA, MATHEW KREUZER, LENA M.
FAMULANO, DONNELL HARRIS, NICOLE FAULKNER, CARLOS FERNANDEZ,
BRIAN ALLEN MORA, MATTHEW MCGOWAN, VLADIMIR S. GARRIDO
BIAGETTI, BRITTANY DOWELL, TONY HERNANDEZ, III, STEPHEN W. ROBERTS,
HANNAH E. VOYTEN, STACY M. JOHNSON, JOSHUA LEONOR, RACHAEL JACK,
ROBERT C. SHOUP, SHARA L. MATLOCK, SHANTELLE OLIVER, MIGUEL
MARTINEZ, AMY TULLIS, ANDREW HETTINGER, MEGAN MACINTYRE, IAN
SAMPSON, DENIENE GOREY, VANESSA GONZALEZ, ARTHUR BAKER,
CHARLOTTE R. MAXWELL, AARON HORNER, ANNA DILLON, PAUL BISSETT,
KAYLA NEWSOM, AMANDA FISHER, ALEXANDER DANIELS, GAGE BENSON,
CORY TSEV, IVAN RUIZ, RUDY NUNEZ, SHADD MELCHIORRE, OMAR
GUTIERREZ, ORIDIO CASTRO-DELCID, RUDY VILCHIS, CORDELL GODFREY,
HEATHER RICHARDS, JULISSA DOUVILLE, CHELSEA E. FIELDS, RONALDO
ALVAREZ, JACKIE LOUDERMILK, CLAUDIA E. TAYLOR, DEREK IAN
CANTWELL, LETICIA QUINTERO, JERA L. PENNINGTON, MATTHEW T. DONIS,
RYAN M. CASSLER, ANGELA GESARIO, SCOTT TAFT, REYNA C. CRUZ, DARRELL
WARD, DANIEL ARGO, MEGAN A. MURRAY, MATTHEW SAUERS, ELIZABETH
HOPKINS, BARBOA CAESAR, SHELLY M. STINSON, JUSTIN BREEDEN, REYNA M.
RYES LARIOS, JENNIFER CURTIS, JESSA ANDERSON, JESSE WOOTEN, GABRIEL
O. GURALIEROS, SCOTT MEISTER, FRENDIRA GOMEZ, DANIEL NEFF, DANETTE
RODRIGUEZ, JOHNNY MALDONADO, ADAM DIREISDORF, JESSICA L.
KACZMAREK, MICHAEL BEER, JOEL MAYO, MEGHAN L. CLOSE, MELISSA
MARTINEZ, GIVONTE HUEY, ADAM DAVIS, DUSTTIN NICHOLSON, ROBERT
MCCANN, GABRIEL WHITE, JONATHAN BOUYER, MICHAEL S. MOSCHINI,
JULIE ANNE CORTIZO, AUBRY BAIRD, BRITTANY SWA, VERONICA MENCHEN,
NETANEL GUTT, CARMEN M. DIAZ, ROBERTO GOUT, BEN CAMARONE GARR,
MEAGHAN MCCLUGAIA, GROCAIELO HERNANDEZ, ROBERTA OKUADJO,
KARISMARIE NIEDZWIECKI, SCOTT RAMR, EMILY EDGAR, LAURA IBARRA,
ERIC LEWIS, JOSE A. SANCHEZ-PENA, DEREK CASE, KARLI KOPIETZ, CARLOS
ROMERO, DARRELL ANDERSON, KRISTIAN PI, MELISSA ALVARADO, ROBERT O.
SMITH, PAUL A. ANDORFER, ELIZABETH H. GOMULA, JEFFREY A. MOBLEY,
JOSHUA MIDDENDORF, KAYLA M. DAVIS, CHRIS PERRY, ANDRES QUINONES,
ROWANA ANTHONY, MARIA REYES, ZACHARY SANFORD, SANDRA CHURCH,
46
TONY LACHEL, MILTON CHAMBERLAIN, III, ANDREW MCIALWAIN, SARAH
ELIZABETH WILLS, JASON LEVERENZ, ERIKA MAH, ARGURO RAMON, SCOTT
MUMFORD, FERNANDO BARRETO, DAVID R. PERRUCHON, URI ANTONIO
AGUILAR, JOSEPH DEIVECCHIO, MARK B. PAETZ, SHENISE WILLIAMS, CARLA
M. CARRABBIA, STEPHANIE PORTILLO, JAMES BITTNER, SORAYA KANOU,
MARTHA RODRIGUEZ, KEVIN CHAN, RICHMOND C. FRISON, ANDRIA LARSON,
VICTORIA GUTIERREZ, RUSSELL A. CARATANUTO, FRANKO MERINO, EDITH
SIGARAN, MARINA TAYAMA, RACHEL NORRIS, CIARA L. HURU, TRACIE
SHALTUCK, HOLLY KENNELL, MARK GIORDANO, MICHAEL PRINGLE, JESSICA
GARCIA, VERENICE GALVAIN, MAYLIN LEE SCHOFIELD, GENIFER GELMAN,
RAMON A. RAMOS, STEVEN HALSTEAD, STEVEN MOO, NICHOLE R. HUNDLEY,
DARLENE NICHOLS, JOHN THOMAS GONZALEZ, COLE HOLMAN,
JOHNATHAN MORRIS, DANIEL FERRIE, KRISTEN KING, AMANDA PASTORE,
MIRIAM BAUTISTA, DONNA LEE JOHNSON, JOANNY ALVAREZ, KYLE
YANDENBURGH, ALEJANDRO LOPEZ, KELSEY WRIGHT, ZAKARIA FESSIKH,
MATTHEW ROWEDDA, JONATHON WOLAK, LUIS A. VEGA, SAIAS MARTINEZ
MONDRAGON, MARCOS MCADOO, REBECCA DAMPHOUSSE PLANT, MONICA
GARCIA, DANIELLE ENGLE, ERIC LUND, JOSH PAETZ, JIMMY TUCKER,
AMANDA HENRY, JESSICA DAVIES, ROBYN YEAGER, KALINDA FLORES, JOSE R.
ORTEGA, JOHN M. FEAR, JAMIE LAMB, JUVENAL VARGAS, OSCAR PEREIRA,
KYLE FENNESSEY, CHELSEY NICASTRO, CARLOS ALEXI AVALOS GRANADOS,
HEATHER DORNHECKER, PATRICE DERFLINGER, MARTA SERRATO, DENNIS
MIGUEL ORDONEZ-RAMOS, RAMON ALONSO, JOSIE HALL, LYDIA PIEPER,
RAUL CRUZ, MICHAEL J. WOOD, ERICK MEDINA, CARRIE SWANSON,
(CLEMETSON), KEISLER BAQUIRAN, BRITTNEY ALSTON, GABRIEL VASQUEZ,
NICOLE DAVIS, KELLY PALECEK, DANIEL HOWLING, LUIS VIDAL, KRISTIN
VATES, ALEXANDRA NEAL, RICHARD BUTCHER, ISELA HERNANDEZ, NORMA
P. MORALES, STEPHANI TWIDELL, JOSE RAUL BARRIOS, DARRYL MILLEDGE,
SCOTT M. COSTELLO, KENNETH J. STACY, NICHOLAS TELLEZ, SEAN SULLIVAN,
JEFF HABLE, KRYSTAL BEINING, LORENA A. CHAPARRO, ARAN CASTILLO,
JOHN J. HOLLAND, MARK A. GAJDA, MARISOL I. TELLEZ, DUSTIN ROBERTS,
STEVEN HASTINGS, JEFFREY E. RUPARD, JOANNA WILLIAMS, RYAN
CHRISTOPHER FURST, ABIGAIL VEGA, WANDA A. HARY, MICHAEL PRICE,
MARISSA COOLEY, CRUZ FLORES, MATTHEW WERNER, GREGORIO CASTILLO,
RAMEL CRESPO, ANTHONY ESQUIVEL, OCTAVIO MORA, JACOB N. WILDE,
CHRISTIAN ROCHA, JASON A. SIMON, NICOLE RECCO, JOHN
JOYCESUMMERFELD, NATHAN FENWICK, MICHAEL BERLAD, JORGE LOPEZ,
EUA ANGEL, MARISOL RAMIREZ, KELLY NITZSCHE, EMILY A. CARR, APRIL
LEAH MILLER, (DELSOL), KARL HASENDEHRL, ISABEL PRITCHETT, RYAN
MCINTYRE, ANHARA ROLON YANEZ, ADAM CHRISTIAN, EUSTOLIA MEDINA,
47
PATRICIA VILLANUEVA, MERIDETH ELBRECHT, JOHN UNDERWOOD,
OLGUIMAR RODRIGUEZ-RAMOS, ROSARIO BETANCOURT, KRISTINA R.
RODRIGUEZ, MELVIN ALVAREZ-GREGORY, KATHRYN DIAZ, MOISES RUIDIAS,
NATHANIEL DAVID SCHNEPPLE, DANIEL DALTON, ROBERTO GOMEZ,
DIESHON CLARK, JONATHAN POPCHOKE, MATTHEW TORNO, NICHOLAS
DWYER, WILLIAM AVILES, AILIN REYES, ABRAHAM MORAGA, JESUS
ORTEGON, CHRISTOPHER AARON ARMSTRONG, LUIS VICENCIO, CHUN W. YU,
ALMA DELIA CALDERON VELAZQUEZ, APPOLONIA PEREZ, STEVEN ROPER,
ROBERT STRAUSBAUGH, LOVANA TAYLOR, ALEXIS L. MARTINEZ, MARTHA
LORENZO MORALES, JOSE HERNANDEZ-MIRANDA, LAUREN KELSCH, SEAVEN
CAYSON, REGGIE COVERSON, STEVEN CRAMP, SARAH L. MEYER-ALLEN,
CASSANDRA MALAK, WILLIAM COLLINS, NORMA ORTEGA, KYLE RICHUN,
EMILEE CALHOUN, MIKE STELZER, MORTIMER CADOGUN, RAUL RUIZ, JR.,
RAUL LOVATO, LUIS ALONSO ORTEGON, CHRISTINA HOLLINGSHEAD, ADAN
CASTILLO RAMOS, ERIC LOW, VANIA VASQUEZ, JONATHAN R. NICHOL, JOE
ROSTYNE, JANNELLE KIRKWOOD, KOFI BOSSMAN, NATANAEL DIAZ
PORTILLO, TARA M. GENTRY, CHRISTINA G. WEST, GERALD V. LABENSKY, JR.,
FREDDY A. DIAZ VEGA, SARA GARNER, MICHAEL RINGLE, FELIPE NAVARRO,
PARITHAN KUNGSUVVAN, JOSEPH JACOBS, ALEXANDRIA RAMAS, SARAH
NOAH, JONATHAN M. HAYS, ROBERT J. GALLAGHER, RENEE POPE-MACEDO,
KATHRYN ARMSTRONG, NICOLE PERKINS, MICHELLE HERRERA, LUIS TORRES,
II, AMBER L. FORTSON, BRANDON MORGAN, VIDALIA FLORES TRUJILLO,
SARAH PAPE, JOEL GOSNELL, VIVIANA HENRIQUEZ, AMIE MYERS, DAVID
NOEL, ANDREW PAOLINETTI, ADELINA SANCHEZ, WAYNE CHARLES FRANZ,
WILLIAM R. DOWNARD, MILAGROS M. DE LA FUENTE, BRIDGETT THOMAS,
JOSE JACOBS, WILLIAM I. LAKE, CRYSTAL TORRES, ERNEST M. DIAZ, SHALETT
DOXIE, SHALETT DOVIE, BRIAN P. HOWELL, JOSSEP DIAZ, JASON KERN,
MADDIE BRENNAN, JOE DETTLO, MELISSA SOSA, EVA ANGEL, LOURDES P.
FLORES, ANA DELGODILLA, TIARA HUGHES, ROXANA MORALES, FREDDIE
AHUMADA, ANTHONY MANCO, LAURA YBARRA, CARLOS FRAGUADA, PETER
C. DELGADO, BRITTANY LINK, JOSE VILLAFRANCO, CONSUELO V. PEREZ, JOSE
RAMIREZ, ANA PIMENTEL, BONNIE BUSS, KEVIN SCOTT, GRACIELA ESCOBAR,
MORTIMER CADOGAN, THOMAS BLAKE DODSON, WILLIAM R. MEYER, RYAN
TRACY, BRIAN SHORT, RAFAEL ESCALANTE, JOSEPH ROSTYN, ANA LUISA
VIDAL, JOHN E. HEJDUK, THOMAS WERNER, ASHLEY P. GREEN, MICHAEL
IERINA, KATE KUZMESKUS, ERNESTO BALDELAMAR, CARMELO MENDEZ, JR.,
OMAR CASILLAS, JACOB MAJOR, KAI CLARK, RODIS NAJARRO, MARIA ROSA,
MARK A. TURNER, TRISTA P. TAGUE, YVETTE DODGE, COREY YEAUGER, HANS
RICHTER, JOSHUA GOTTLOB, ALYSSA ASHLEY CHISHOLM, BRYCE HANDY,
48
GABRIEL CARRION VELLEJO, ALFREDO CUATE BRIONES, ANA MARIA
HEREDIA, ANA LAURA SANCHEZ INFANTE, JAIME MANZO, JASON LIS
49
SULLIVAN, Circuit Judge, concurring in part and dissenting in part:
While I concur in Parts I and II of the majority’s decision, I respectfully
dissent with respect to Part III. Specifically, I disagree with the majority regarding
the proper standard to be applied in determining whether plaintiffs are “similarly
situated” for the purposes of a collective action under 29 U.S.C § 216(b).
Furthermore, I believe that the district court’s decertification of the collective
action was not an abuse of discretion when judged against the correct standard.
Accordingly, I would affirm the district court’s ruling in its entirety.
I.
First, the majority’s newly minted definition of “similarly situated” – i.e.,
that “named plaintiffs and opt-in plaintiffs share one or more issues of law or fact
that are material to the disposition of their FLSA claims” regardless of any
“dissimilarities in other respects,” Maj. Op. at 29 (emphasis added) – has no basis
in the text of the statute. As the majority concedes, the FLSA nowhere defines the
term “similarly situated,” leaving the words to be interpreted in accordance with
their plain meaning and the reasoned judgment of district judges tasked with
assessing the universe of facts available in a given case. Common sense would
suggest that “similarly situated” often requires more than the sharing of a single
fact or legal issue, and that the existence of multiple dissimilarities would be
highly relevant to the inquiry. The majority’s definition – equating “similarly
situated” with “any similarity” – lowers the bar for collective actions, and reduces
district courts to mere bystanders rather than gatekeepers.
Unlike the majority, I do not view the differences between Rule 23 and
§ 216(b) as supporting the “any similarity” standard. To be sure, the standards
under Rule 23 and § 216(b) are wholly “independent of, and unrelated to” one
another, Kern v. Siemens Corp., 393 F.3d 120, 128 (2d Cir. 2004) (quoting Grayson v.
K Mart Corp., 79 F.3d 1086, 1096 n.12 (11th Cir. 1996)), and the requirements of
§ 216(b) are less stringent than those of Rule 23, see Myers v. Hertz Corp., 624 F.3d
537, 555–56 (2d Cir. 2010), in part because courts are not faced with the same due
process concerns regarding absent class members that they face in a class action
under Rule 23, see Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 263 n.17 (S.D.N.Y. 1997)
(Sotomayor, J.) (observing that Rule 23 is designed in part to protect the due
process rights of absent class members, a concern that is not present in the FLSA
context). Nevertheless, I am not convinced that Rule 23 and § 216(b) serve
“fundamentally different purposes,” Maj. Op. at 38, or that their differences are so
substantial as to make the “similarly situated” requirement of § 216(b) a mere
2
formality. “Section 216(b) of the FLSA and Rule 23(b)(3) are animated by similar
concerns about the efficient resolution of common claims.” Calderone v. Scott, 838
F.3d 1101, 1103 (11th Cir. 2016). While plaintiffs must make an additional showing
to be certified as a class under Rule 23, neither plaintiffs nor the court would be
significantly benefited if plaintiffs were allowed to proceed collectively despite
having drastically different material facts or different legal claims simply because
they share a single common fact or legal issue. See Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 170 (1989) (“A collective action allows . . . plaintiffs the
advantage of lower individual costs to vindicate rights by the pooling of resources.
The judicial system benefits by efficient resolution in one proceeding of common
issues of law and fact arising from the same alleged discriminatory activity.” (emphasis
added)); see also Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 538 (3d Cir. 2012)
(explaining that “simply sharing a common status, like being an illegal
immigrant,” and being subject to a “common scheme” does not amount to being
“similarly situated” if “[l]iability and damages still need to be individually
proven”). Although the majority is undoubtedly correct that “where the
conditions of § 216(b) are met, employees have a substantive ‘right’ to proceed as
a collective,” Maj. Op. at 38, plaintiffs must, as a threshold matter, actually satisfy
3
those conditions – including that they are “similarly situated.” Where they cannot,
employees will nonetheless continue to have an incentive to bring FLSA suits
individually, particularly since prevailing plaintiffs will still be entitled to
attorneys’ fees under the statute even if the damages award is modest. See Fisher
v. SD Prot. Inc., 948 F.3d 593, 604 (2d Cir. 2020) (emphasizing that there is no
requirement that attorneys’ fees be proportional to the settlement amount, as
“[t]he whole purpose of fee-shifting statutes is to generate attorneys’ fees that are
disproportionate to the plaintiff's recovery” (emphasis omitted) (quoting Millea v.
Metro-N. R. Co., 658 F.3d 154, 169 (2d Cir. 2011)).
I am equally unpersuaded by the majority’s critique of the ad hoc test
employed by the district court and many other courts around the country. Maj.
Op. at 31. Most of the cases cited by the majority are readily distinguishable, and
do in fact assess some of the factors identified under the so-called ad hoc test. See
Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 226 (3d Cir. 2016)
(emphasizing that courts should consider “all relevant factors . . . on a case-by-case
basis,” including “the factual and employment settings of . . . plaintiffs, the
different defenses . . . , the degree of fairness and procedural impact of certifying
the action . . . , and whether plaintiffs have made the appropriate filings with the
4
EEOC”); McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 367 (S.D.N.Y. 2014)
(looking not to a single question of law or fact but rather “common questions of
law and fact,” and specifically noting that courts typically consider the ad hoc
factors). The majority leans most heavily upon the Ninth Circuit’s decision in
Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018), which contains broad
language that arguably supports the majority’s expansive “similarly situated”
requirement. But while the Ninth Circuit disapproved of the ad hoc approach “as
it is typically articulated,” even it clarified that it did not intend to “preclude the
district court[] from employing . . . a version of the ad hoc test modified so as to
account for the flaws” it had identified. Id. at 1117, 1117 n.21.
To me, it seems obvious that an assessment of whether plaintiffs are
“similarly situated” requires the application of an ad hoc test that leaves district
courts free to consider the myriad factors – including both similarities and
dissimilarities – at play in a given case. See Zavala, 691 F.3d at 537–38 (finding that
the plaintiffs had failed to satisfy the “similarly situated standard” because “[t]he
similarities among the proposed plaintiffs are too few, and the differences among
the proposed plaintiffs are too many” such that there would be “minimal utility in
streamlining resolution of the claims”). Although the requirements under Rule 23
5
and § 216(b) are different, we have in fact recognized that the predominance
inquiry under Rule 23 and the “similarly situated” standard under § 216(b) are
“admittedly similar.” See Myers, 624 F.3d at 556. A district court should thus
consider similarities such as “whether the plaintiffs are employed in the same
corporate department, division, and location; whether they advance similar
claims; whether they seek substantially the same form of relief; and whether they
have similar salaries and circumstances of employment.” Karlo v. Pittsburgh Glass
Works, LLC, 849 F.3d 61, 85 (3d Cir. 2017) (emphases omitted) (quoting Zavala, 691
F.3d at 536–37). It should then weigh these against any dissimilarities, such as the
“disparate factual and employment settings of the individual plaintiffs” and
“defenses available to defendants which appear to be individual to each plaintiff.”
Scott v. Chipotle Mexican Grill, Inc., No. 12-cv-8333 (ALC) (SN), 2017 WL 1287512,
at *8 (S.D.N.Y. Mar. 29, 2017) (quoting Hernandez v. Fresh Diet, Inc., No. 12-cv-4339
(ALC) (JLC), 2014 WL 5039431, at *3 (S.D.N.Y. Sept. 29, 2014)); see also Zavala, 691
F.3d at 536–37 (“Plaintiffs may also be found dissimilar based on the existence of
individualized defenses.”). In weighing these factors, a court should consider
“fairness and procedural considerations counseling for or against collective action
treatment.” Scott, 2017 WL 1287512, at *8 (quoting Hernandez, 2014 WL 5039431, at
6
*3. In my view, this standard more appropriately accounts for the “flaws”
identified by the court in Campbell while still promoting efficient and just
resolution of claims.
I am thus less troubled than the majority that “courts facing parallel motions
to decertify an FLSA collective action under § 216(b) and to certify a class action
under Rule 23 have tended to allow either both actions or neither to proceed on a
collective basis.” Maj. Op. at 34 (quoting Ruiz v. CitiBank, N.A., 93 F. Supp. 3d 279,
298–99 (S.D.N.Y. 2015)). While the two provisions are surely distinct, such an
outcome would seem to be a natural result of two statutes that allow for class
treatment based on some showing of similarity between plaintiffs. In sum, rather
than being forced to certify a collective if plaintiffs share a single common issue,
the district court, with the benefit of having reviewed volumes of record evidence
after years of discovery, should be able to weigh the similarities and dissimilarities
to determine if plaintiffs are “similarly situated” such that the collective action
mechanism is the appropriate vehicle for the claims at issue.
II.
Having defined what I view as the appropriate standard, I also depart from
the majority’s application of the law to the facts here. While one can quibble with
7
the propriety of the district court’s reference to the “sliding scale” standard, it
seems to me that the district court’s ultimate conclusion in this case was wholly
justified. See Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002)
(upholding the district court’s decision where it misstated the standard but
properly analyzed the claims). The district court cited the ad hoc factors “[t]o
avoid conflating § 216(b) collective certification with Rule 23,” and I see no
evidence that its analysis was in fact driven by the more stringent requirements of
Rule 23. Scott, 2017 WL 1287512, at *8. Instead, the district court concluded that
despite the possibility that one could identify a common issue among Plaintiffs,
the similarities were superficial. Its decision was supported by factual findings,
and to my mind at least, was not an abuse of discretion.
For all of these reasons, I would affirm the district court’s ruling in all
respects. I therefore dissent from Part III of the majority’s opinion.
8