United States District Court, D. Minnesota
Tina Norris, Sally Michalak, and Wendy Loepp, individually and on behalf of all others similarly situated, Plaintiffs,
Bluestem Brands, Inc.; Blair, LLC; and Does 1-10, Defendants.
OPINION AND ORDER
C. Tostrud United States Judge.
over two years of litigation in this Fair Labor Standards Act
(“FLSA”) case, the Parties seek to decertify the
conditional class, dismiss the Opt-In Plaintiffs' claims
without prejudice, and dismiss the Named Plaintiffs'
claims with prejudice. The Parties initially presented these
requests as a stipulation. ECF No. 179. In compliance with
the Court's January 24, 2019 Order concluding that court
approval of decertification and dismissal in FLSA matters
“is at least advisable, and perhaps required, here,
” ECF No. 181 at 12, Defendants filed an unopposed
motion explaining the grounds for decertification and
dismissal, ECF No. 185. Although the Court erred in inferring
from the Parties' stipulation that there had been a
settlement (the Parties have since made clear there was no
settlement), review of the requested decertification and
dismissal is nonetheless required by law to ensure that they
are fair and equitable, especially with respect to the Opt-In
Plaintiffs. That review establishes clearly that
decertification and dismissal are appropriate because
discovery has revealed that the class members are not
“similarly situated” and the Named
Plaintiffs' claims are not viable.
Norris, Sally Michalak, and Wendy Loepp (the “Named
Plaintiffs”) bring one collective-action claim under
the FLSA for failure to pay overtime wages and bring three
putative class-action claims pursuant to Fed.R.Civ.P. 23 for
breach of contract, unjust enrichment, and violations of the
Pennsylvania Minimum Wage Act of 1968. Second Am. Compl.
¶¶ 89-140 [ECF No. 86]. Plaintiff Norris also
separately asserts a claim for retaliation under the FLSA.
Id. ¶¶ 141-45.
Plaintiffs are three former employees of Defendants' call
center in Erie, Pennsylvania; one was a full-time hourly
telephone sales agent (Norris), and two were hourly
customer-service agents (Michalak and Loepp) who worked
full-time and part-time, respectively. Id.
¶¶ 15-17, 30, 34, 39, 43-44. They allege a
modern-day donning-and-doffing routine in which they were
unpaid for time spent booting up their computers, as well as
completing “final calls” with customers that
extended beyond the designated end time of their shifts.
Id. ¶¶ 49-62. They allege that this unpaid
pre-shift procedure took approximately ten minutes per shift,
and that “final calls” would regularly last two
to seven minutes. Id. ¶¶ 49-51, 59-62.
26, 2017, the same day they filed their Second Amended
Complaint, Plaintiffs moved for conditional class
certification under the FLSA, relating exclusively to Count 1
for overtime wages. See Renewed Mot. to Certify
Conditional Class [ECF No. 77]; Second Am. Compl.; Jan. 10,
2018 Order at 9 n.2 [ECF No. 103]. Plaintiffs sought to
certify a conditional class covering all Defendants' call
centers in Pennsylvania (in Erie, Franklin, and Warren), but
the Court only granted certification as to the Erie location.
See Id. at 11-14 (concluding that, at least at the
conditional-certification stage, “[t]he work performed
by customer service agents and telephone sales agents is
similar enough to permit joinder” and that the
“employees at the Erie call center were subject to a
common injury from a common policy, ” but that
“Plaintiffs ha[d] failed to provide sufficient support
or allegations . . . that any employee at the Franklin or
Warren call center went uncompensated”). And although
Plaintiffs alleged both pre- and post-shift work went
uncompensated, the Court only certified a conditional class
as to pre-shift work. See Id. at 19-20 (declining to
certify post-shift class because Defendants used an
FLSA-compliant “rounding policy” to pay employees
to the nearest quarter hour, and Plaintiffs did not come
forward with “sufficient support or allegations that
the rounding policy was improperly used to deprive Plaintiffs
of appropriate compensation”). Specifically, Magistrate
Judge Tony N. Leung certified the following class on January
All current and former Telephone Sales Agents and Customer
Service Agents employed by Bluestem Brands, Inc. and/or
Blair, LLC, at the call center in Erie, Pennsylvania, at any
time in the last three years, who were not paid for
off-the-clock work during their preliminary
Id. at 22.
objected to that order. ECF No. 105 (objecting only to the
exclusion of the Warren and Franklin call centers from the
conditionally-certified class). Reviewing the matter de novo,
District Judge Susan Richard Nelson agreed that there was an
insufficient showing to justify inclusion of the two other
Pennsylvania call centers in the conditionally-certified
class. See Apr. 26, 2018 Mem. Op. and Order at 17
[ECF No. 148]. But Judge Nelson afforded Plaintiffs an
opportunity “to file a renewed motion for conditional
certification in the event that they obtain and file at least
some evidence to sustain their burden of
establishing that employees at the Franklin and Warren call
centers were subject to the same unwritten policy as that
alleged by the Erie employees.” Id. at 20.
Plaintiffs subsequently sought conditional certification to
include those Franklin and Warren call center employees, ECF
No. 152, but their motion was denied. See Aug. 28,
2018 Order at 15-16, 18-19 [ECF No. 173] (“Without any
reliable information concerning the Franklin, Pennsylvania
call center, this Court again declines to include it in the
conditional class. With respect to the Warren, Pennsylvania
call center, Plaintiffs have failed to show a common injury
from a common [unwritten] policy tying the Warren facility to
the Erie facility.”). Accordingly, the contours of the
conditionally-certified class remained unchanged.
of its conditional-class-certification order, the Court had
directed the Parties to notify the members of the class via
mail and email. See Jan. 10, 2018 Order at 21-23. In
total, 107 individuals have opted into this litigation (the
“Opt-in Plaintiffs”). See Rollins Decl.
¶ 2 [ECF No. 187]; see also ECF Nos. 108-09,
113, 115-24, 126-47, 149-51.
that time, the Parties have been conducting discovery.
See Pretrial Scheduling Order at 1 [ECF No. 111];
Am. Pretrial Scheduling Order at 1 [ECF No. 177] (extending
fact-discovery deadline to April 1, 2019). The Parties
“agreed to participate in targeted discovery in advance
of a settlement conference, ” which “included
limited written discovery and the depositions of the three
[N]amed Plaintiffs.” Rollins Decl. ¶ 3 [ECF No.
187]. As the Defendants' unopposed motion for
decertification and dismissal describes, “certain facts
came to light” during the depositions of the three
Named Plaintiffs that revealed “disparate work
experiences” and “undermined the merits of the
three Named Plaintiffs' claims.” Mot. ¶ 3 [ECF
particular, the Named Plaintiffs' depositions were
inconsistent with their previous sworn statements about being
“required” to complete pre-shift work before
clocking in. See Norris Decl. ¶ 7 [ECF No. 80];
Michalak Decl. ¶ 7 [ECF No. 81]; Loepp Decl. ¶ 7
[ECF No. 82]. Michalak testified that “[t]he company
suggested you be there [early], but they didn't put it as
a requirement.” Rollins Decl. Ex. C (“Michalak
Dep.”) at 30:9-33:12, 46:19-50:21 [ECF No. 187-3]. She
admitted that her declaration incorrectly stated that she was
“required” to arrive at work early. Michalak Dep.
at 129:16-130:13. Loepp similarly testified that it was not
actually a requirement to arrive early at work, and that
arriving early was just a way to get the “perks [of]
being a good sales representative.” Rollins Decl. Ex. B
(“Loepp Dep.”) at ...