United States District Court, N.D. Alabama, Eastern Division
VIRGINIA PRINCE, on behalf of herself and all others similarly situated, Plaintiffs,
THE CATO CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
Introduction and Procedural History
the Court is Defendant Cato Corporation's (hereinafter
“Cato”) Motion To Decertify the Conditionally
Certified Collective Action (the “Motion”). (Doc.
64). Plaintiff Virginia Prince filed this action for herself
and other similarly situated persons alleging violations of
the Fair Labor Standards Act (“FLSA”). (Doc. 1).
The Court conditionally certified a class. (Doc. 47).
Following discovery, Cato filed the present motion. (Doc.
64). Both parties have briefed the Motion and it is ripe for
review. For the reasons stated herein, the Motion is
Court of Appeals for the Eleventh Circuit has endorsed a
two-step approach to determining whether to certify a
collective action under Section 216(b):
The first determination is made at the so-called
“notice stage.” At the notice stage, the district
court makes a decision-usually based only on the pleadings
and affidavits which have been submitted-whether notice of
the action should be given to potential class members.
Because the court has minimal evidence, this determination is
made using a fairly lenient standard, and typically results
in “conditional certification” of a
representative class. If the district court
“conditionally certifies” the class, putative
class members are given notice and the opportunity to
“opt-in.” The action proceeds as a representative
action throughout discovery.
Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d
1208, 1218 (11th Cir. 2001) (quoting Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.
1995)). “Because the court has minimal
evidence [during the first stage], this determination is made
using a fairly lenient standard, and typically results in
‘conditional certification' of a representative
class.” Hipp, 252 F.3d at 1218.
The second determination is typically precipitated by a
motion for “decertification” by the defendant
usually filed after discovery is largely complete and the
matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a
factual determination on the similarly situated question. If
the claimants are similarly situated, the district court
allows the representative action to proceed to trial. If the
claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are
dismissed without prejudice. The class representatives-i.e.
the original plaintiffs-proceed to trial on their individual
Hipp, 252 F.3d at 1218.
bear the burden of demonstrating a “reasonable
basis” for their contention that collective action
status is appropriate. Grayson v. K-Mart Corp., 79
F.3d 1086, 1097 (11th Cir. 1996) (citing Haynes v. Singer
Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983)). Also,
“[t]he decision to create an opt-in class under §
216(b), like the decision on class certification under Rule
23, remains soundly within the discretion of the district
court.” Hipp, 252 F.3d at 1219.
Supreme Court has identified the main benefits of a
collective action under § 216(b):
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 . . . activity.
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165,
170, 110 S.Ct. 482, 486, 107 L.Ed.2d 480 (1989). Separate
from determining the similarly situated issue, other district
courts have “balance[d] these putative benefits against
any prejudice to the defendant and any judicial
inefficiencies that may result from allowing plaintiffs to
proceed collectively.” Bayles v. American Medical
Response of Colorado, Inc., 950 F.Supp. 1053, 1067 (D.
Colo. 1996); see Id. (“Further, regardless of
the potential benefits, plaintiffs still must meet their
burden of showing that they are similarly situated.”).
Eleventh Circuit further explained in Morgan:
The second stage is triggered by an employer's motion for
decertification. Anderson, 488 F.3d at 953. At this
point, the district court has a much thicker record than it
had at the notice stage, and can therefore make a more
informed factual determination of similarity. Id.
This second stage is less lenient, and the plaintiff bears a
heavier burden. Id. (citing Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1103 (10th
In Anderson, we again refused to draw bright lines
in defining similarly, but explained that as more legally
significant differences appear amongst the opt-ins, the less
likely it is that the group of employees is similarly
situated. Id. (“Exactly how much less lenient
we need not specify, though logically the more material
distinctions revealed by the evidence, the more likely the
district court is to decertify the collective
action.”). We also refused to “specify how
plaintiffs' burden of demonstrating that a collective
action is warranted differs at the second stage.”
Id. Rather, we emphasized the fact that the
“ultimate decision rests largely within the district
court's discretion, ” and clarified that in order
to overcome the defendant's evidence, a plaintiff must
rely on more than just “allegations and
affidavits.” Id. Because the second stage
usually occurs just before the end of discovery, or at its
close, the district court likely has a more extensive and
detailed factual record.
In Anderson, we also quoted approvingly of
Thiessen, where the Tenth Circuit identified a
number of factors that courts should consider at the second
stage, such as: “(1) disparate factual and employment
settings of the individual plaintiffs; (2) the various
defenses available to defendant[s] [that] appear to be
individual to each plaintiff; [and] (3) fairness and
procedural considerations[.]” Anderson, 488
F.3d at 953 (quoting with approval Thiessen, 267
F.3d at 1103); see also Mooney, 54 F.3d at 1213 n.
7, 1215-16. Thus, at the second stage, “although the
FLSA does not require potential class members to hold
identical positions, the similarities necessary to maintain a
collective action under § 216(b) must extend beyond the
mere facts of job duties and pay provisions” and
encompass the defenses to some extent. Anderson, 488
F.3d at 953 (citation and quotation marks omitted). For
example, the district court must consider whether the
defenses that apply to the opt-in plaintiffs' claims are
similar to one another or whether they vary significantly.
Id. at 954 n. 8 (noting that all named plaintiffs
were unionized but some opt-in plaintiffs were not, making
the collective bargaining agreement defense applicable to
some but not all plaintiffs). But ultimately, whether a
collective action is appropriate depends largely on the
factual question of whether the plaintiff employees are
similarly situated to one another.
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1261-62 (11th Cir. 2008). Additionally, the Eleventh Circuit
reviews under the abuse of discretion and clear error
Further, we review a district court's § 216(b)
certification for abuse of discretion. Hipp, 252
F.3d at 1217; Grayson, 79 F.3d at 1097. Judicial
discretion in making a § 216(b) certification decision
is, of course, not unbridled. Indeed, “ ‘[a]
district court abuses its discretion if it applies an
incorrect legal standard, follows improper procedures in
making the determination, or makes findings of fact that are
clearly erroneous.' ” Anderson, 488 F.3d
at 953-54 (quoting Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th
Cir.2001)). The district court first must apply the proper
legal standards for authorizing a § 216(b) collective
action and for determining what similarly situated means. A
court's determination that the evidence shows a
particular group of opt-in plaintiffs are similarly situated
is a finding of fact. Anderson, 488 F.3d at 954
(affirming decision to decertify based on conclusion
“that the district court's view of the evidence is
reasonable, and its findings, therefore, are not clearly
erroneous”); Hipp, 252 F.3d at 1208 (noting
that decertification decision is one where the court
“makes a factual determination on the similarly
situated question”). We will reverse the district
court's fact-finding that Plaintiffs are similarly
situated only if it is clearly erroneous-not simply because
we might have made a different call. Anderson, 488
F.3d at 953-54 (citing McMahan v. Toto, 256 F.3d
1120, 1128 (11th Cir.2001)).
Id. at 1260.