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Moody v. Associated Wholesale Grocers, Inc.

United States District Court, E.D. Louisiana

November 14, 2019


         SECTION: “H” (4)



         Before the Court is Defendant's Motion to Decertify Collective Action under the Fair Labor Standards Act (“FLSA”) (Doc. 105). For the following reasons, Defendant's Motion is GRANTED.


         This is a collective action for unpaid wages under the FLSA.[1] Defendant Associated Wholesale Grocers, Inc. (“AWG”) is a national food wholesaler that operates a warehouse complex in Pearl River, Louisiana as part of its distribution network. Plaintiff De'on Moody (“Moody”) began working for Defendant as a selector in 2006. In this position, his job duties included loading and unloading delivery trucks and repackaging delivery pallets. The position entitled him to compensation at an hourly rate. He regularly worked overtime hours and was compensated by Defendant accordingly.

         In November 2012, Defendant promoted Moody to a supervisor position. Defendant classified the supervisor position as exempt from FLSA's overtime requirements, and Moody was compensated with a salary. Moody alleges that Defendant misclassified him as a supervisor because his “job descriptions and duties do not qualify [him] to be exempt from the FLSA overtime provisions.”[2]Moody further alleges that he regularly worked overtime and is entitled to payment for that work under the FLSA.

         Moody moved the Court to conditionally certify a class of “all individuals employed by AWG from October 7, 2014 to the present who held the position of supervisor in AWG's Pearl River facility.”[3] The Court conditionally certified the class pursuant to the Lusardi approach for certification.[4] Seventeen opt-in Plaintiffs have since joined the action. Defendant argues that Moody and all other opt-in Plaintiffs were properly classified as exempt from FLSA's overtime provisions.

         In the instant motion, Defendant AWG asks the Court to decertify the collective action, arguing that Moody and the seventeen opt-in Plaintiffs are not sufficiently “similarly situated” to proceed with the collective action. Defendant asserts that Plaintiffs are not similarly situated for four reasons: (1) the job duties for the different types of supervisors differ to the extent that a decision about one type's FLSA exemption cannot provide the basis for a decision about a different type; (2) even within a single type of supervisor role, the duties differed among those supervisors to a degree that would impact the analysis as to each Plaintiff's exempt status; (3) some of the Plaintiffs performed unique or special job duties during the relevant period; and (4) some Plaintiffs may be ineligible to participate in the collective action.[5] AWG argues that, because of the significant differences among the Plaintiffs' primary duties, an individualized analysis will be necessary to assess the Plaintiffs' FLSA-exempt status, rendering a collective action inappropriate.[6] The Court agrees.


         The FLSA generally provides that employers must pay their employees one and a half times their regular rate of pay for all hours worked in excess of forty per week.[7] However, employers do not have to pay overtime wages to individuals “employed in a bona fide executive, administrative, or professional capacity.”[8] To qualify for one of these exemptions, an employee's “primary duty” must be the performance of exempt work.[9] The exemptions “constitute affirmative defenses to overtime pay claims, ” and the employer bears the burden of proving that an employee is properly classified as exempt.[10]

         The FLSA provides a cause of action for employees to recoup improperly denied overtime wages.[11] The FLSA further allows for one or more employees to bring such a claim on their own behalf and on behalf of others who are “similarly situated” in the form of a collective action.[12] The FLSA does not define what it means for employees to be “similarly situated.”

         Courts have utilized two methods for determining whether plaintiffs are similarly situated, commonly referred to as the Lusardi approach and the Shushan approach.[13] The Fifth Circuit has not determined whether either approach is required.[14] The Eastern District of Louisiana, however, has consistently applied the approach first articulated in Lusardi v. Werox Corp.[15]This approach uses a two-step analysis. First, at the “notice stage, ” the court determines whether notice should be given to potential members of the collective action, “usually based only on the pleadings and any affidavits.”[16]Because the court has little evidence at this stage, “this determination is made using a fairly lenient standard, and typically results in ‘conditional certification' of a representative class.”[17]

         If the court grants conditional certification, the case proceeds as a collective action through discovery.[18] After discovery, the defendant may move for decertification.[19] At that point, the court makes a factual inquiry, with the benefit of considerably more information, as to whether the employees are similarly situated.[20]

         Under the Lusardi approach, courts apply a three-factor test to determine whether plaintiffs and potential members of the collective action are similarly situated. The factors include: “(1) the extent to which the employment settings of employees are similar or disparate; (2) the extent to which any defenses that an employer might have are common or individuated; and (3) general fairness and procedural considerations.”[21] “The more dissimilar plaintiffs' job experiences are from one another and the more individuated an employers' defenses are, the less appropriate the matter is for collective treatment.”[22] “[T]he burden is on the plaintiff to prove that the individual class members are similarly situated.”[23]


         I. The Exemptions

         Because AWG asserts that Plaintiffs “were properly classified as exempt pursuant to the executive exemption, administrative, and the combination exemptions, ”[24] this Court must consider the Plaintiffs' job duties in light of the aforementioned exemptions. The Court will first provide a brief overview of the pertinent exemptions.

         A. Executive Exemption

         To qualify as an executive, an employee must (1) be paid on a salary basis at least $684 per week; (2) have management of the enterprise as his or her “primary duty;” (3) “customarily and regularly” direct the work of two or more other employees; and (4) have the authority to hire or fire other employees or make recommendations about hiring, firing, advancement, promotion or any other change of status of other employees that are given “particular weight.”[25]Only the latter three requirements are at issue in this case.

         1. Management as a Primary Duty

         A “primary duty” is the principal, main, major, or most important duty performed by the employee, based on all the facts and with an emphasis on the character of the employee's job as a whole.[26] The amount of time spent performing exempt work can be a useful guide to determine whether such work is the employee's “primary duty.”[27] While time alone is not the sole test to determine primary duties, an employee who spends more than fifty percent of his or her time performing exempt work will generally satisfy the “primary duty” requirement. However, concurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption if the statutory requirements are otherwise met.[28]

         Exempt management activities include directing the work of employees; maintaining production records for use in supervision or control; appraising employees' productivity and efficiency for the purposes 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; controlling the flow and distribution of materials or merchandise and supplies; and providing for the safety and security of the employees or the property.[29]

         2. Customarily and Regularly Directing the Work of Two or More Employees

         An executive employee must customarily and regularly direct the work of two or more employees. “Customarily and regularly” requires something more than occasional but may be less than constant; it includes work normally and recurrently performed every workweek.[30] The requirement of “two or more employees” contemplates two full-time employees or their equivalent.[31] An employee who merely assists the manager of a particular department and supervises two or more employees only in the actual manager's absence does not meet this requirement.[32]

         3. Authority to Hire or Fire or Make Recommendations with Particular Weight

         An executive employee must have the authority to hire or fire other employees. Alternatively, the executive employee's recommendations as to hiring, firing, promoting, or advancement must be given “particular weight.” To determine whether an employee's suggestions and recommendations are given “particular weight, ” factors to be considered include whether it is part of the employee's job duties to make such suggestions and recommendations; the frequency of suggestions; and the frequency with which the employee's suggestions and recommendations are relied upon.[33] It does not include an occasional suggestion with regard to the change in status of a co-worker.[34]

         B. Administrative Exception

         To qualify as an exempt administrator, the employee must (1) be paid on a salary basis of not less than $684 per week; (2) have the primary duty of office work or non-manual work directly related to management or general operations of the employer; and (3) exercise discretion and independent judgment with respect to matters of significance when engaged in primary duties.[35] Only the latter two requirements are at issue in this case.

         1. Office Work or Non-Manual Work Related to Management or General Operations as a Primary Duty

         The primary duty of an administrative employee must be office work or non-manual work directly related to management or general operations. Work is “directly related to the management or general business operations” if it assists with the running or servicing of the business.[36] This includes work in functional areas such as auditing; quality control; purchasing; procurement; safety and health; personnel management; human resources; computer network, internet and database administration; legal and regulatory compliance; and similar activities.[37]

         2. Discretion and Independent Judgment on Matters of Significance

         An exempt administrative employee's primary duty must consist of exercising discretion and independent judgment on matters of significance. The employee must have the “authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”[38] Exercising discretion and independent judgment “must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals.”[39] It does not include “clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work.”[40]

         Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee provides consultation or expert advice to management; and whether the employee investigates and resolves matters of significance on behalf of management.[41]

         C. Combination Exemptions

         Finally, an employee may be exempt from the FLSA's overtime requirements if he or she falls under the “combination exemption.” This exemption is for “[e]mployees who perform a combination of exempt duties as set forth in the regulations . . . for executive [and] administrative . . . employees.”[42]

         II. Analysis

         For this suit to continue as a collective action, the Court must determine that the Plaintiffs are similarly situated after considering the extent to which the Plaintiffs' job duties are similar or disparate, whether AWG would be required to deploy individualized defenses, and any fairness or procedural concerns.

         A. Similarities and ...

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