Briefing relative to the Motion for Notice was complete as of August 29, 2005. 1

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANNA SALINAS, on her behalf and on §

behalf of those similarly situated, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 3: 04-CV-1861-B

§

O'REILLY AUTOMOTIVE, INC., §

§

Defendant. §

MEMORANDUM ORDER

Before the Court is Plaintiff’s Motion for Notice to Potential Class Members (“Motion for

Notice”) (doc. 126), filed June 23, 2005. The Court DENIES the motion for the reasons that 1

follow. 

I. Factual and Procedural Background

On August 26, 2004, Plaintiff Anna Salinas (“Salinas”) filed this action under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., on behalf of herself and others similarly situated.

Salinas was employed by Defendant O’Reilly Automotive, Inc. (“O’Reilly”) from December 1999

until May 2004. (Compl. ¶ 11). Seven other current and/or former O’Reilly employees have filed

consents to join as plaintiffs in this case. Though the allegations in her original complaint were

extremely vague, Salinas has now defined the class she seeks to certify to include hourly, nonexempt

retail store employees who spent time performing tasks after store closing hours without receiving

proper pay. Salinas says that these “closing duty workers” were either paid for only a portion of time

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spent performing such duties, or they were not paid at all. 

The Court held a hearing on March 10, 2005 dealing with various outstanding motions filed

by the parties. Among other things, the Court heard argument regarding whether Salinas was

entitled to discover the names and addresses of similarly situated current and/or former O’Reilly

employees. The following day the Court ordered O’Reilly to provide Salinas with the names and

addresses of O’Reilly employees that were similarly situated to Salinas. The Court directed the

parties to confer in an attempt to reach agreement on how “similarly situated” individuals should be

defined. Agreement could not be reached, however, and the parties submitted briefing on the scope

of the names and addresses to be produced by O’Reilly. 

Upon review of the parties’ briefing, the Court determined that O’Reilly should not be made

to produce to Salinas the names and addresses of similarly situated individuals until such time as the

Court had made the initial determination of whether this case should be conditionally certified as

a collective action under the FLSA, with notice to issue to potential class members. The Court

established a briefing schedule with respect to Plaintiff’s Motion for Notice. The parties have filed

motion papers in accordance with that schedule, and the issues presented by those papers are ripe

for review and determination by the Court.

II. Analysis

A. General Standards

Employers are required under the FLSA to compensate non-exempt employees at overtime

rates for time worked over a statutorily-defined number of hours. 29 U.S.C. § 207(a). “[A]ny one

or more employees” may bring an FLSA action on behalf of herself or themselves and other “similarly

situated” employees. 29 U.S.C. § 216(b). A collective action under the FLSA is designed to serve

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the dual purposes of vindicating FLSA rights while conserving judicial resources. See Basco v. WalMart Stores, Inc., 2004 WL 1497709, at *3 (E.D. La. July 2, 2004) (citing Hoffman-LaRoche Inc. v.

Sperling, 439 U.S. 165, 170 (1989)). Whether to conditionally certify an action to proceed

collectively and allow a plaintiff to notify potential plaintiffs of their right to “opt-in” the suit is a

discretionary matter for the district court. See Sperling, 439 U.S. at 170. 

While the Fifth Circuit, in Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995),

declined to adopt any particular methodology for"opt-in” certification under the Age Discrimination

in Employment Act (“ADEA”), which explicitly incorporates § 216(b) of the FLSA, the majority of

federal courts employ the approach developed in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D. N.J.

1987). See e.g. Butler v. San Antonio, 2003 WL 22097250, *1 (W.D. Tex. Aug. 1, 2003); Villatoro

v. Kim Son Rest., 286 F. Supp.2d 807, 809-10 (S.D. Tex. 2003); Barnett v. Countrywide Credit Indus.,

Inc., 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002). Under the Lusardi approach, the first

stage is the “notice stage” at which the court determines whether the plaintiff has provided sufficient

evidence that “similarly situated” potential plaintiffs exist. Mooney, 54 F.3d at 1214-15. Because the

court has minimal evidence at this stage, usually in the form of pleadings and affidavits, the standard

for making this determination is lenient. Id. at 1214; Aguilar v. Complete Landsculpture, Inc., 2004

WL 2293842, at *2 (N.D. Tex. Oct. 7, 2004); Cameron-Grant v. Maxim Healthcare Serv., Inc., 347

F.3d 1240, 1243 (11th Cir. 2003). 

The plaintiff need only demonstrate that the potential class members “are similarly situated

with respect to their job requirements and with regard to their pay provisions.” Aguilar, 2004 WL

2293842, at * 1-2. The positions need not be identical. Barnett, 2002 WL 1023161, at * 1. Nothing

more is required than “substantial allegations that the putative class members were together victims

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of a single decision, policy, or plan infected by discrimination.” Mooney, 54 F.3d at 1214 n.8

(internal quotations and citations omitted); Villatoro, 286 F.Supp. 2d at 810. If the plaintiff satisfies

the relaxed “notice stage” standard, then the court will usually conditionally certify the class. Id.;

Hall v. Burk, 2002 WL 413901, at *2 (N.D. Tex. March 11, 2002). After notice and time for

opting-in, the action proceeds as a collective action throughout discovery. Mooney, 54 F.3d at 1213-

14. 

The “second stage” is typically precipitated upon a motion for “decertification” filed by the

defendant. Id. at 1214. The court may then re-examine its decision and decertify the class. Id. at

1214; Hall, 2002 WL 413901, at *2. The court’s decision on whether the class members are similarly

situated is then based upon the factual information gleaned from discovery. Johnson v. TGF Precision

Haircutters, Inc., 319 F.Supp.2d 753, 754-755 (S.D. Tex. 2004). 

B. Whether Salinas has Demonstrated the Existence of “Similarly Situated” Potential Plaintiffs

As discussed above, the first step in determining the propriety of conditional certification is

to ascertain whether Salinas has provided “minimal evidence” demonstrating that similarly situated

putative “opt-in” class members exist. Mooney, 54 F.3d at 1213-14. Salinas bears the burden of

showing that she is similarly situated to the proposed class of employees. Basco, 2004 WL 1497709,

at *5 (citing Pfohl v. Farmers Ins. Group, 2004 WL 554834 (C.D. Cal. March 1, 2004)). In an

attempt to meet her burden, Salinas relies upon her own deposition testimony, declarations from six

other individuals who have either filed consents to join as plaintiffsin this case or who are considered

to be potential opt-in plaintiffs, and various records generated from investigations of O’Reilly’s labor

practices by the United States Department of Labor (“DOL”) dating back to 1997. Below the Court

will generally describe those items of evidence.

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Salinas started working for O’Reilly on December 20, 1999, and resigned on May 7, 2004.

(App. in Supp. Pl.’s Mot. for Notice [“Pl.’s App.”] at 2, 3). During her near 4 1/2 year tenure at

O’Reilly, Salinas had worked at at least six different O’Reilly store locations and has assisted in

setting up inventory at several others. (App. in Supp. Def.’s Resp. [“Def.’s Resp. App.”] at 8-11).

While Salinas worked under the supervision of several different managers during this time, her sole

complaint in this lawsuit is with Ronnie Everage, the manager of O’Reilly’s Mansfield, Texas store.

(Id. at 15, 26). Salinas claims that from January 2004 to April 2004, she was not paid for time spent

running the end-of-the-month backup tapes after the store closed at 9:00 p.m. (Id. at 18, 24). She

ran the backup tapes approximately six times over these four months without being paid overtime.

(Id.). Performing this duty took anywhere between 30 minutes and two hours. (Id. at 17-18). 

Salinas and other employees at the Mansfield store would typically record extra time worked

on the schedule. (Id. at 20-21). Salinas contends that she was unable to record the extra time she

worked running the backup tapes, however, because Everage moved the schedule into his office on

a spot over his desk that was so high that nobody could reach it. (Id. at 20). Salinas claims that

Everage instructed her not to write on the schedule. (Id.).

Declarant Lionel Flores was an associate manager at an O’Reilly store in Houston, Texas.

(Pl.’s App. at 42). He claims that his two managers told him that O’Reilly would only pay for work

performed after the store had closed up until a set time, varying from 30 to 60 minutes past closing.

(Id. at 43). Any time worked beyond that, Flores says, was uncompensated. (Id.). He further states

that he “frequently” ran end-of-the-day sales printouts beyond the time for which he was paid had

expired. (Id. at 44). Flores also reports that O’Reilly counterpersons who closed the store with him

were not paid for after-hours work beyond a specified period of time. (Id. at 44). 

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Declarant Patrick Gruesbeck was a night manager for O’Reilly from January 2001 through

June 2001. (Id. at 46). He states that during his short tenure with the company he was scheduled

to work five to six days per week from 12:30 p.m. to 9:30 p.m, but that approximately two days per

week he worked 15 to 45 minutes past his scheduled time, for which he was not paid. (Id. at 46-47).

Tasks which Gruesbeck performed after 9:30 p.m. included counting the cash register drawers and

running end-of-the-night reports. (Id. at 47). He “believes” that other employees working past 9:30

p.m. were similarly not paid for all the time they worked because “it was O’Reilly’s policy that

employees were not paid for work past the time they were scheduled to stop working, even if they

actually worked past that time.” (Id.). 

Declarant Dusty Green, who has not filed a consent to join this suit, was a night manager at

an O’Reilly store in Alabama. (Id. at 49). He states that while he was “occasionally” paid overtime,

he worked “numerous” hours for the company without receiving compensation for those hours. (Id.).

Green would typically work 30 to 45 minutes running reports and counting money after the store had

closed. (Id. at 50). He was not paid for all of this time worked, however, because “[i]t was O’Reilly’s

unwritten policy that I would not be paid for the time that I worked after the store closed.” (Id.).

Declarant Mary Katherina Woodard, also of Alabama, was an assistant manager at an

O’Reilly store from May 2002 through November 2004. (Id. at 51). She too was “occasionally” paid

“some overtime”, but states that she “was never paid more than 5 hours overtime per week when

Todd [last name unknown] and [Jesse] Loveless were the managers.” (Id. at 52). Woodard states

that she would count cash registers, run end-of-the-night and end-of-the-month reports without

always receiving pay for performing such activities. (Id. at 51-52). Woodard further states that in

October 2004 she attended a training session where several assistant managers and managers in

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 O’Reilly contends that O’Neal was never a night manager. (Def.’s Resp. Brief at 10). O’Reilly 2

claims instead that O’Neal was hired as a parts specialist and later became an assistant manager and then an

installer service specialist, or “dealer.” (Def.’s Resp. App. at 54-55). According to O’Reilly, an installer

service specialist does not typically perform closing duties. (Id. at 54).

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stores operating under the jurisdiction of Eric Simms, the district manager, told the trainer that they

were not being paid for time worked after store closing hours. (Id. at 53). 

Declarant and opt-in plaintiff Jay O’Neal worked at two different O’Reilly stores in

Oklahoma from February 1999 to May 2002. (Id. at 56). During his tenure at O’Reilly, O’Neal

states that he worked as an assistant manager, a night manager, and a dealer. (Id.). He claims that

as an assistant manager and dealer he regularly worked 50 hours a week, but was paid time and a half

for only five of the 10 hours he worked above 40 hours. (Id. ). As night manager , O’Neal claims 2

that he regularly worked 50 or more hours a week but was not paid time and a half for any time

worked over 40 hours a week. (Id. at 56-57).

Finally, declarant Scott List worked at two different stores in Garland, Texas as an installer

service specialist. (Id. at 58). He claims that he was told by several employees at one of those stores

that such employees were not paid for 15 to 30 minutes of work performed after midnight. (Id. at

59). He further states that he was told by employees at the other store at which he worked that such

employees were not paid for 15 to 30 minutes of work performed after 10:00 p.m. (Id.). Notably,

List does not state that he himself performed any store closing duties for which he did not receive

compensation. His knowledge of O’Reilly’s alleged FLSA violations stems solely from what he was

told by his co-workers.

Salinas also cites to four different DOL investigations of O’Reilly that took place from 1997

to 2004. The first investigation concluded that an O’Reilly store in Oklahoma failed to compensate

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employees for all overtime hours worked. (Pl.’s App. at 66). The report noted that the manager of

the store recorded employees’ hours on a calendar in his office, recommending that “perhaps a more

permanent and reliable method of [recordkeeping] would be more dependable.” (Id.). The report

did not indicate any violations concerning closing duties performed by O’Reilly employees.

The second investigation found a recordkeeping violation in a Nebraska store for failing to

maintain appropriate records of employee hours worked. (Id. at 73). Some employees also reported

that they averaged around 40 hours a week but were able to take time off the next day to average

40 hours a week “if they worked a little late some evenings.” (Id.). Again, this report did not

specifically indicate any violations concerning closing duties performed by O’Reilly employees.

The third investigation concerning a Missouri store location involved complaints that “on

a limited basis some of the [employees] would [work] beyond their scheduled shift when they closed

the store.” (Id. at 81). In such cases the employee would tell the store manager, who would adjust

the employee’s schedule to prevent the employee from exceeding 40 hours of work per week. (Id.).

Adjustments were typically effected by allowing employees to come into work late the following day.

(Id.). The report also noted a failure to maintain proper daily/weekly records. (Id.).

The final investigation found that a Missouri store had failed to compensate employees for

time and a half for hours worked in excess of 40 hours per week. (Id. at 89). The investigation also

concluded that employees were “often times [] paid for only scheduled hours disregarding

postliminary time worked.” (Id.). 

Considering the foregoing evidence, the Court finds that Salinas has failed to show that she

and the potential opt-in plaintiffs are similarly situated. The case of Salinas herself, the named

plaintiff, is emblematic of her failure to demonstrate that the circumstances described in the evidence

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she presents were created by a generally applicable policy or practice of O’Reilly. Salinas worked at

at least six different O’Reilly store locations during her 4 1/2 years with the company. During that

time she complains that she was not paid all the overtime to which she was entitled at just one of

those stores, in Mansfield, Texas, and that even there she complains only about the actions of one

particular manager, Ronnie Everage. In fact, Salinas recounted at her deposition that many of the

other store managers for whom she worked were “good” managers who paid her the proper amount

of overtime. 

Thus, with respect to “closing duties”, Salinas’s sole complaint seems to be that she worked

beyond her scheduled hours without pay on approximately six occasions between January 2004 and

April 2004. She claims that she was unable to record the extra hours worked because Everage, the

store manager, placed the hours schedule in his office beyond her reach and instructed her not to

write on it. Salinas’s own testimony thus shows that her claims are limited to the misdeeds of a single

manager at a single O’Reilly store. The conduct of which Salinas complains scarcely evidences a

widespread policy or practice. See Basco, 2004 WL 1497709, at * 6 (concluding that plaintiffs’

“extremely anecdotal” testimony concerning one manager was insufficient evidence of a policy or

practice).

O’Reilly also contends that the experiences of opt-in plaintiffs Gruesbeck, O’Neal, Flores, and

List, and potential plaintiffs Green and Woodard, further demonstrates that the complained of FLSA

violations are local in nature and based on manager-specific conduct. O’Reilly points out the

differences in the alleged “policies” effected by various O’Reilly managers spread across parts of

Texas, Oklahoma, and Missouri. Some declarants, for example, generally claim that their managers

failed to pay any overtime for closing duties performed beyond scheduled working hours (Gruesbeck).

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Others allege that their managers had a policy to pay up to only five or 10 hours of overtime per week

(Woodward and O’Neal). Still others complain that their managers paid overtime only up to a “set

time” – usually 30 to 60 minutes – after closing (Flores), or that managers would only “occasionally”

pay overtime (Green, Woodard). And of course, though Salinas admits that the majority of

managers for whom she worked were “good managers” that paid her the proper amount of overtime,

she complains that one manager, on approximately six occasions over a four-month span, prevented

her from recording her overtime for running monthly backup tapes by placing the schedule out of

her reach.

Salinas’s evidence fails to convince the Court that the violations of which she is complaining

are indicative of a company-wide policy or practice. See H&R Block, Ltd. v. Housden, 186 F.R.D. 399,

400 (E.D. Tex. 1999) (denying motion for approval of notice, finding that, among other things,

plaintiffs failed to submit evidence “that might show a widespread plan of discrimination existed.”).

O’Reilly is a large, national corporation employing some 19,000 people in over 1286 stores in 25

different states. (Def.’s Resp. App. at 53). Salinas’s evidence, taken as true, merely shows that a

handful of O’Reilly managers have committed possible FLSA violations in a variety of different ways.

The fact that many of the claims happen to involve a failure to pay overtime for duties performed

after closing hours is alone insufficient to show that Salinas and potential class members are bound

together as victims of an O’Reilly policy or practice. As these claims are flavored by particularized

conduct occurring at the store/manager level, they should appropriately be tried separately. The

Court finds that forcing these claims, which each involve their own unique facts and circumstances,

into a collective action would disserve the interest of judicial economy. Having found that Salinas

has failed to meet her burden to demonstrate substantial similarity, the Court denies Plaintiff’s

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Motion for Notice and finds that there is no basis to conditionally certify a class in this case.

The Court finds support for the decision it reaches today from various district court cases

within this circuit. In Basco v. Wal-Mart Stores Inc., 2004 WL 1497709 (E.D. La. July 2, 2004), for

example, the plaintiffs alleged that Wal-Mart engaged in a “pattern” of conduct whereby its

employees worked off the clock, were locked in the store at night off the clock while waiting for

management to release them, and were forced to miss rest and meal breaks. Id. at *2. The plaintiffs

moved for FLSA class certification and for approval of notice to all similarly situated employees in

Louisiana. Id. at *1. Because the parties had engaged in substantial discovery, the court addressed

both of the Lusardi steps in deciding whether to certify a class. Id. at *4. In examining the first step

– whether the plaintiffs had demonstrated “some factual nexus which binds the named plaintiffs and

the potential class members together as victims of a particular alleged [policy or practice]” – the

court addressed the plaintiffs’ contention that they were “often” required to work off the clock. Id.

at *5-6. The court reviewed the deposition testimony provided by the plaintiffs, and, in the court’s

words, was not “overwhelmed” that this testimony constituted evidence of a policy or practice. Id.

Instead the court found the testimony “to be extremely anecdotal – one manager requiring it as

oppose[d] to all, perhaps once or twice during the course of a plaintiff’s work.” Id. 

The plaintiffs in Basco also argued that Wal-Mart’s policy to keep salary costs down created

an incentive for managers to have employees work off the clock. Id. at *6-7. But the court agreed

with Wal-Mart’s position that plaintiffs’ request for class certification should be denied because the

plaintiffs failed to identify a “single decision, policy or plan” as set forth in Mooney. Id. at *7. The

court stated:

Simply put, plaintiffs seek to make a corporate policy to keep employee wage costs low

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sufficient proof to justify the creation of a class of all Wal-Mart employees that have not been

properly paid overtime in the last three years. It is obvious from the discovery presented that

this “policy” and its effects are neither homogeneous nor lend themselves to collective

inquiry. The effects of the policy as alleged are anecdotal, that is to say particularized.

Plaintiffs’ own witnesses demonstrate that the “policy” was not even uniformly or

systematically implemented at any given store. While it is true that this “lesser” standard

should not preclude certification, and “similarly situated” does not mean identically situated,

plaintiffs have failed in their burden of proof to demonstrate identifiable facts or legal nexus

that binds the claims so that hearing the cases together promotes judicial efficiency. For this

reason the Court would deny the Motion to Certify Collective Action.

Id. at *7. So too here, while Salinas and other declarants allege a “policy”, the effects of that “policy”

appear to have been felt only sporadically, and, as Salinas’s own situation demonstrates, the urged

“policy” or “practice” was unevenly applied from store to store, and even from manager to manager.

 In England v. New Century Financial Corporation, 370 F.Supp.2d 504, 506 (M.D. La. 2005),

the plaintiffs – loan officers who performed the same job, with the same job title, and who were

subject to the same compensation plan, policies, procedures and performance standards – claimed

that managers at 70 of the 80 branch offices of the defendants instructed them to not record their

overtime hours. Id. at 506. The plaintiffs having failed to file a formal motion to certify the case as

a collective action, the defendants took the preemptive step of filing a motion to reject conditional

certification. (Id. at 506). The court granted the motion, finding that the

plaintiffs in this case have not met their burden of showing that they are “similarly situated.”

It is clear that this case involves a multitude of different managers at different geographical

locations across the country. It is also clear that individual inquiries must predominate in

this case because of the different locations, managers, and factual situations involved at each

location. . . . The Court also finds that if liability is found at one location, this would not

necessarily require this Court to also find liability at another location. If liability is found,

damages would necessarily require a case-by-case inquiry, thereby rendering it impossible to

try this case as a collective class.

Id. at 511. The court also found that the plaintiffs failed to provide sufficient evidence showing that

the claims involved a nationwide illegal policy. The affidavits submitted by some of the plaintiffs led

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 Salinas contends that the England decision was issued a year and a half after the defendant was 3

“ordered to disclose a list of all the allegedly similarly situated employees nationwide.” (Pl.’s Reply Brief at

10). Salinas attaches the magistrate judge’s order in their reply appendix, which states only that defendants

were required to provide a “list of loan originators”. (Pl.’s Reply App. at 1). It is impossible to tell from the

order whether the “list of loan originators” correlated with a list of all similarly situated employees nationwide.

Even assuming arguendo that the defendants in Englandwere required to produce a list of all similarly situated

employees nationwide, for the reasons stated in the Court’s May 24, 2005 Memorandum Order, the Court

finds that a defendant should not be required to furnish a plaintiff with the names and addresses of potential

class members until after the class has been conditionally certified.

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the court to conclude that “that these alleged claims are based on local policies of various managers

located at different sites. There is simply no evidence of a national policy that would support a

collective action under the facts of this case.” Id. 

Salinas argues that reliance upon the Basco and England decisions is misplaced because she

says that substantial class discovery had taken place in those cases and that the courts’ decisions in

those cases were “explicitly based on second stage factors applicable to decertification motions after

extensive discovery.” (Pl.’s Reply Brief at 9). The Court disagrees with Salinas’s characterization

of these decisions. Although England involved a rather convoluted procedural background, the

opinion itself does not indicate that “extensive” class discovery had been completed. For example,

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the court noted that defendants took the position certain discovery should only be available after the

class has been conditionally certified – essentially mirroring O’Reilly’s position throughout this

lawsuit that class-related discovery isinappropriate prior to conditional certification. Id. at 507. The

opinion also notes that plaintiffs’ counsel contemplated taking 200-400 depositions without indicating

whether any depositions were actually taken. Id. at 506. Furthermore, in making the “similarly

situated” determination, it appears that the court relied only upon affidavits submitted by some of

the plaintiffs, which would have been available even in the absence of “extensive” discovery. Id. at

511. 

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Nor does the Court find support in England for Salinas’s view that the court applied “second

stage” factors in reaching its decision. Rather, the court there found that the affidavits and/or

declarations submitted by the plaintiffs failed to establish the existence of a nationwide policy

necessary to conditionally certify a class. Id. The court noted that the plaintiffs themselves argued

that the evidence they submitted was sufficient to satisfy the “lenient ‘similarly situated’ standard.”

Id. at 506. Indeed, the posture of the case at the time of decision was such that no class had yet been

conditionally certified. The second stage inquiry of whether the class should be “decertified” thus

did not come into play.

And while the court in Basco noted that “substantial discovery” had occurred in that case,

it nevertheless proceeded to consider the criteria for each of the Lusardi stages. Id. at *5. With

respect to the first stage, the court found that “plaintiffs have failed in their burden of proof to

demonstrate identifiable facts or legal nexus that binds the claims so that hearing the cases together

promotes judicial efficiency[]”, and that “[f]or this reason the Court would deny the Motion to

Certify Collective Action.” Id. at *7. Although the Basco Court did note that the two steps of the

inquiry tend to bleed into one another in situations where substantial evidence is presented before

the court, see id. at *7 n.8, this Court finds that Basco’s treatment of the first step is persuasive

authority for this case.

The Court further notes that Salinas complains about the limited scope of discovery she was

permitted in this case. O’Reilly points out in its sur-reply brief that it offered Salinas the opportunity

to take the depositions of ten individuals, among them being the company’s Vice President of

Human Resources, Director of Retail Systems, Director of Team Member Relations, and Director

of Training. (Def.’s Reply Brief at 1). Salinas did not avail herself of the opportunity to depose those

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individuals, possibly because, as Salinas contends, O’Reilly indicated that the topics on which those

witnesses would testify would be limited. In any event, quarrels about the scope of discovery in this

case are immaterial in light of Salinas’s utter failure to demonstrate through pleadings and affidavits,

over which she has control, that there is “some factual nexus which binds the named plaintiffs and

the potential class members together as victims of a particular alleged [policy or practice].” Villatoro,

286 F.Supp.2d at 810 (quoting Crain v. Helmrich & Payne Int’l Drilling Co., 1992 WL 91946, at *2

(E.D. La. April 16, 1992)). Rather, Salinas’s own evidence demonstrates that the violations of which

she and others are complaining were sporadic occurrences at different stores in different states that

were committed only by a select group of managers. Salinas recognizes that a court “can foreclose

a plaintiff’s right to proceed collectively only if ‘the action relates to specific circumstances personal

to the plaintiff rather than any generally applicable policy or practice.’” (Pl.’s Mot. for Notice at 9)

(quoting Crain, 1992 WL 91946, at *2. Here, because Salinas has failed to present even minimal

evidence that O’Reilly’s alleged FLSA violations resulted from a “generally applicable policy or

practice”, the Court finds that this case should not proceed on a collective basis.

III. Conclusion

For the reasons set forth above, Salinas’s Motion for Notice is DENIED. The parties are

instructed to file a joint status report regarding the status of this case within 15 days from the date

of this order. The report should state whether Salinas and those who have filed consents to join in

this action intend to pursue their claims on an individualized basis. The parties should further put

forth their respective positions as to the scheduling of this case going forward.

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SO ORDERED.

SIGNED November 17, 2005

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

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