OPINION AND ORDER
Martin Guillen has sued Marshalls of MA, Inc., Marmaxx Operating Corporation d/b/a Marmaxx Group, and the TJX Companies Inc. (collectively “Marshalls”) on the ground that Marshalls failed to pay him overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., while he was employed as an Assistant Store Manager (“ASM”). Guillen now moves to have this case conditionally approved as a collective action with notice being sent to all ASMs at Marshalls stores nationwide. For the reasons discussed below, Guillen’s motion is denied without prejudice to an application seeking notification with respect to ASMs at a more limited number of Marshalls stores.
I. BACKGROUND
Marshalls is one of the largest retailers in the world. See Defendants’ Opposition to Plaintiffs Motion for Conditional Certification and Facilitation of Notice Pursuant to 29 U.S.C. § 216(b), filed July 9, 2010 (Docket #21) (“Def. Motion”) at 36. There are 820 Marshalls stores in the United States, which are divided into separate geographic zones, regions, and districts. Affidavit of Maryann Parizo, filed July 9, 2010 (Docket # 22) (“Parizo Aff.”) ¶¶ 3-4. Each Marshalls store has a store manager, at least two ASMs, and a number of coordinators and associates. Id. ¶ 9. Marshalls employs two types of ASMs: Operations ASMs and Merchandise ASMs. Id. ¶ 11. Marshalls classifies both Merchandise and Operations ASMs as exempt from the FLSA’s overtime provisions. See Marshalls Assistant Store Manager-Exempt-Job Description (annexed as Ex. 2 to Parizo Aff.) (“Job Description”) at *TJX4; Affidavit of Martin Guillen in Support of Plaintiffs Motion for Conditional Certification (annexed as Ex. 1 to Affirmation of Marc S. Hepworth in Support of Plaintiffs Motion for Conditional Certification, filed June 4, 2010 (Docket # 18) (“Hepworth Aff.”)) (“Guillen Aff.”) ¶ 3. Coordinators and associates are classified as non-exempt employees eligible for overtime. See Parizo Aff. ¶¶ 13, 14; Job Description at *TJX4.
According to the ASM job description, Marshalls ASMs are “[Responsible for assisting the Store Manager in managing the day-to-day operation of the store and customer service within the store.... ” Job Description at *TJX4. Merchandise ASMs are required to “[m]anage[ ] in-store operations ... [,] [o]versee[ ] the efficient operation of merchandising standards and presentation, operational functions and key areas such as frontline, layaway and cash office ... [,] [and] [a]ssist[ ] in managing key areas such as maintenance and back room functions.” Guide to Store Management’s and Coordinators’ Duties & Responsibilities (annexed as Ex. 3 to Parizo Aff.) (“Guide to Store Management”) at *TJX249. Operations ASMs are also required to “[m]anage[ ] in-store operations.” These ASMs “[o]versee[ ] the efficient operation of key areas such as cash office, maintenance and backroom functions ... [,] [and] [a]ssist[] in managing merchandising standards and presentations.” Id. at *TJX250.
Guillen asserts that, despite this job description, he in fact performed a number of non-exempt tasks, including “operating the cashier [sic], stocking, cleaning, rolling the racks from the stock room to the floor, displaying clothes in departments, unloading trucks, signage (displaying the tags on the merchandise), running merchandise and restocking clothes in the departments.” Guillen Aff. ¶ 6. He “was also required to organize the store floors by ... sweeping, mopping and removing garbage.” Id. He states that he “cleaned windows, painted doors, painted walls, cleaned bathrooms[,] ... erected display stands[,] ... stocked shelves, cleaned the stock room, helped customers and checked prices.” Id.; accord Complaint, filed Nov. 18, 2009 (Docket # 1) ¶ 20. Guillen asserts that “[t]he majority of [his] time as an Assistant Store Manager was spent performing non-exempt tasks.” Guillen Aff. ¶ 7.
Guillen has also submitted the affidavits of Nicole Archibald, Zobeyda Morales, and Ellen Ogaian, former ASMs at Marshalls, and of Lady Diana Santillian, currently employed as an ASM at Marshalls. See Affidavit of Nicole Archibald in Support of Plaintiffs Motion for Conditional Certification (annexed as Ex. 2 to Hepworth Aff.) (“Archibald Aff.”); Affidavit of Zobeyda Morales in Support of Plaintiffs Motion for Conditional Certification (annexed as Ex. 3 to Hepworth Aff.) (“Morales Aff.”); Affidavit of Ellen Ogaian in Support of Plaintiffs Motion for Conditional Certification (annexed as Ex. 4 to Hepworth Aff.) (“Ogaian Aff.”); Affidavit of Lady Diana Santillian in Support of Plaintiffs Motion for Conditional Certification (annexed as Ex. 5 to Hepworth Aff.) (“Santillian Aff.”). Over the course of their careers at Marshalls, Archibald, Morales, and Ogaian were employed at five Marshalls retail stores located in the New York metropolitan area: three in the Bronx and one each in Port Chester and Hartsdale. See Archibald Aff. ¶ 2; Morales Aff. ¶ 2; Ogaian Aff. ¶ 2. The Hartsdale store is the same store at which Guillen worked. See Guillen Aff. ¶2; Ogaian Aff. ¶2. Santillian was employed at two New York Marshalls stores, one in Nanuet and one in Port Chester; she is currently employed at a Marshalls store in Bedford, New York. See Santillian Aff. ¶2.
With respect to whether ASMs perform non-exempt tasks at Marshalls stores other than those at which they were or currently are employed, Guillen, Archibald, Morales, Ogaian, and Santillian have provided the Court with identical statements in their respective affidavits. They assert that it is their “understanding” that all ASMs for all Marshalls locations were required to perform “substantially the same duties and responsibilities.” Guillen Aff. ¶ 5; Archibald Aff. f 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5. They base their understanding on the fact that “Marshalls employed a high degree of standardized operational practices at [its] store[s].... ” Guillen Aff. ¶ 5; Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5. In addition, each states that “as an Assistant Store Manager, I often interacted with other Assistant Store Managers from different districts and regions in New York State ... Based upon my personal observations and [these] discussions ..., I believe the duties and responsibilities of Assistant Store Managers are substantially similar from store to store.” Guillen Aff. ¶ 5; Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5.
For its part, Marshalls has provided the Court with affidavits from five ASMs currently employed at four Marshalls’ stores in New York. See Declaration of Johnny Nunez (annexed as Ex. B to Affidavit of Lisa A. Schreter in Support of Defendants’ Opposition, filed July 9, 2010 (Docket # 23) (“Schreter Aff.”)) (“Nunez Decl.”) ¶ 4; Declaration of Luis Cepa (annexed as Ex. C to Schreter Aff.) (“Cepa Decl.”) ¶3; Declaration of Sal Farruggia (annexed as Ex. D to Schreter Aff.) (“Farruggia Decl.”) ¶ 3; Declaration of Mary Marciniak (annexed as Ex. E to Schreter Aff.) (“Marciniak Aff.”) ¶ 2; Declaration of Bernard Gucciardo (annexed as Ex. F to Schreter Aff.) (“Gueciardo Decl.”) ¶ 3. Two of these ASMs were also formerly employed at seven other Marshalls stores, also in New York. Farruggia Decl. ¶¶ 3-4; Gueciardo Decl. ¶3. These ASMs describe in detail various managerial functions that they perform, including hiring and promoting, training, evaluating, and disciplining nonexempt employees. See Nunez Decl. ¶¶ 34-64; Cepa Decl. ¶¶ 27-33; Farruggia Decl. ¶¶ 8-36; Marciniak Decl. ¶¶ 5-26; Gueciardo Decl. ¶¶ 11-39. Additionally, two non-exempt coordinators, Alejandra Cano and Jodiann McKoy, have submitted affidavits attesting that ASMs in their stores perform supervisory and managerial functions. See Declaration of Alejandra Cano (annexed as Ex. H to Schreter Aff.) ¶¶ 4-11; Declaration of Jodiann McKoy (annexed as Ex. J to Schreter Aff.) ¶¶ 5-11.
II. APPLICABLE LEGAL PRINCIPLES
The FLSA was enacted to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.... ” 29 U.S.C. § 202(a). “The purpose of the FLSA ... was to ‘guarantee [ ] compensation for all work or employment engaged in by employees covered by the Act.’ ”
Reich v. N.Y. City Transit Auth.,
The FLSA requires employers to pay overtime for “employment in excess of [40 hours per week] ... at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1). It exempts certain employees from its overtime requirements, including “any employee employed in a bona fide executive, administrative, or professional capacity....” 29 U.S.C. § 213(a)(1). To qualify for this exemption, the employee’s “primary duty” must include the exercise of discretion and independent judgment with respect to matters of significance.
See
29 C.F.R. § 541.200(a)(3). The Second Circuit has held that “because the FLSA is a remedial act, its exemptions ... are to be narrowly construed,” and the “employer bears the burden of proving that its employees fall within an exempted category of the Act.”
Martin v. Malcolm Pirnie, Inc.,
Section 216(b) of the FLSA provides, in pertinent part:
An action to recover ... liability ... 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). While the statute does not prescribe any procedures for approval of collective actions, section 216(b) has long been construed to grant authority to a district court to mandate that notice be sent to potential plaintiffs informing them of the option to join the suit.
See Hoffmann-La Roche Inc. v. Sperling,
The requirements of Fed. R.Civ.P. 23 do not apply to the approval of a collective action.
Young v. Cooper Cameron Corp.,
“The threshold issue in deciding whether to authorize class notice in an FLSA action is whether plaintiffs have demonstrated that potential class members are ‘similarly situated.’ ”
Hoffmann v. Sbarro, Inc.,
In other words, at this preliminary stage, the focus of the inquiry “is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly situated’ under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.”
Young,
Once plaintiffs have opted in and after discovery is complete, “courts conduct a more stringent ‘second tier’ analysis upon a full record to decide whether the additional plaintiffs are similarly situated to the original plaintiffs.”
Indergit,
In dictum, the Second Circuit has characterized the two-step process described above as “sensible.”
Myers,
III. ANALYSIS
Guillen argues that he is similarly situated to Marshalls’ ASMs nationwide because, “[d]espite [Marshalls’] ‘idealized’ job descriptions” and facially lawful standardized company policies, Marshalls’ ASMs “in fact spent the majority of their work time performing non-managerial duties.” PI. Motion at 10;
see also
Guillen Aff. ¶ 7; Archibald Aff. ¶ 7; Morales Aff. ¶ 7; Ogaian Aff. ¶ 7; Santillian Aff. ¶ 7. In other words, Guillen is not challenging the content of Marshalls’ formal written policies. Rather, he asserts that he was not actually given job duties in conformity with these policies. As a result, to show that he and the putative plaintiffs are “similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated,”
Young,
Guillen’s attack is thus very different from an attack on a common formal policy. In such cases, a court may “rely on the job description itself to demonstrate the scope and similarity of [the proposed plaintiffs’] daily activities,” as long as the company’s job description includes both managerial and non-managerial duties.
Nerland v. Caribou Coffee Co.,
Guillen’s presentation on this point, however, is extremely thin. The evidence essentially consists of affidavits from five ASMs who experienced the allegedly illegal activities at nine of the 820 Marshalls stores nationwide. The nine stores are exclusively in the New York City metropolitan area. It is undisputed that the Marshalls stores are overseen by multiple “[district” and “[r]egional [m]anagers.” PI. Motion at 5-6; see Guillen Aff. ¶ 9; Archibald Aff. ¶ 9; Morales Aff. ¶ 9; Ogaian Aff. ¶ 9; Santillian Aff. ¶ 9; Parizo Aff. ¶¶ 2, 6-8. Thus, the fact that ASMs were responsible for performing non-exempt tasks in contravention of their written job requirements in nine stores in a particular metropolitan area, out of 820 stores nationwide, provides little basis to believe that Guillen is similarly situated to ASMs throughout the country with respect to his claim regarding ASM job responsibilities. Assuming arguendo that there is evidentiary value to the ASMs’ repetition of the hearsay statement that other ASMs in “New York State” performed “substantially similar” work tasks, Guillen Aff. ¶ 8; Archibald Aff. ¶ 8; Morales Aff. ¶ 8; Ogaian Aff. ¶ 8; Santillian Aff. ¶ 8, 2 such statements would be insufficient to show that plaintiffs are similarly situated to ASMs in all 50 states. Notably, Guillen stated in his deposition that he has no personal knowledge about how stores, other than those at which he was an employee, operated. See Deposition of Jose Martin Guillen (annexed as Ex. A to Schreter Aff.) at 336-37.
Guillen’s conclusory statement that “Marshalls employed a high degree of standardized operational practices at [his] store including, the use of a standardized management training program, standardized employment policies and ... an identical hierarchical management structure,” Guillen Aff. ¶ 5;
see also
Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5, does little to add to the inference that ASMs nationwide were similarly situated to Guillen with respect to his claim that he was required to spend a majority of his time performing non-exempt tasks. There is no information provided as to the nature of these “standardized operational practices” and how they relate to the claim that Marshalls’ ASMs are required to perform non-exempt tasks for a majority of their workweek in contravention of the ASM job description. To the extent that Guillen may be asserting that the management structure of Marshalls itself — involving regional and district managers of various sorts,
see
Guillen Aff. ¶¶ 5, 9; Archibald Aff. ¶¶ 5, 9; Morales Aff. ¶¶ 5, 9; Ogaian Aff. ¶¶ 5, 9; Santillian Aff. ¶¶ 5, 9 — justifies a nationwide
Finally, Guillen and the other affiants make reference to the fact that they “received training regarding” certain apparently non-exempt tasks during the standardized management training program. Guillen Aff. ¶¶ 10, 11; Archibald Aff. ¶¶ 11, 12; Morales Aff. ¶¶ 10, 11; Ogaian Aff. ¶¶ 10, 11; Santillian Aff. ¶¶ 10, 11. They do not say, however, that they were instructed in the training program to spend their work hours actually performing such tasks and, indeed, the voluminous management training materials they attach, see Assistant Manager Training Program (annexed as Ex. A to Archibald Aff.); Management Training Program (annexed as Ex. A to Morales Aff.); Management Training Program Materials (annexed as Ex. A to Santillian Aff.), do not support such a conclusion. 3
The absence of information as to employees nationwide renders this ease similar to
Baum v. Shoney’s Inc.,
We do not conclude that Guillen has failed to show that he is similarly situated to ASMs nationwide merely because there are factual differences between Guillen’s situation and that of the proposed class members. We thus respectfully disagree with the reasoning, though not necessarily the result, in
Mike v. Safeco Ins. Co. of Am.,
Guillen asserts that this case is similar to that in
Indergit,
Conclusion
For the foregoing reasons, Guillen’s motion for conditional certification of this suit as a nationwide collective action (Docket # 17) is denied.
SO ORDERED.
Notes
. Some case law holds that "where a defendant employer shows either that the potential recipients of the notice are not similarly situated to the plaintiff or that it will likely succeed at trial in proving that the employees are not entitled under the FLSA to overtime compensation, a court may refuse to authorize notice or postpone deciding the issue pending further discovery and motion practice.”
Amendola v. Bristol-Myers Squibb Co.,
. The Court accepts these hearsay statements for purposes of this motion inasmuch as our consideration of them does not affect the motion’s outcome. The Court notes, however, that some case law holds that such statements are not admissible for purposes of approving a suit as a collective action.
See, e.g., Richards v. Computer Seis. Corp.,
. In a similar vein, Guillen argues that the mere fact that Marshalls classified the ASM position as non-exempt means that Marshalls should not be permitted to argue that plaintiff is not similarly situated to all ASMs. See PL Reply Motion at 22-24. But carried to its logical conclusion, this argument would mean that any employee of a corporation who asserts that he performs non-exempt work necessarily meets the threshold showing that his suit should proceed as a collective action with the class of plaintiffs being all employees nationwide with the same job title. We do not believe, however, that such an allegation is sufficient to meet even the "modest factual showing” required to conclude that all such employees are similarly situated.
. Other cases relied on by plaintiff are similarly distinguishable.
See, e.g., Zivali v. AT & T Mobility LLC,