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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID DEPYPER and KATE 

MILASHUS, individually and on 

behalf of similarly situated persons,

Plaintiffs,

v.

ROUNDY’S SUPERMARKETS, INC.

and ROUNDY’S ILLINOIS, LLC,

doing business as MARIANO’S,

Defendants.

Case No. 20-cv-2317

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiffs David DePyper and Kate Milashus bring a putative collective action 

against their former employer,1 Roundy’s Illinois, LCC (doing business as Mariano’s)

and its corporate owner, Roundy’s Supermarkets, Inc., for allegedly violating the Fair 

Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Illinois Minimum 

Wage Law 820 ILCS 105/1, et seq. (“IMWL”). Before the Court is a motion for 

conditional certification and approval of the proposed notice to potential collective 

action members. (Dkt. 28). For the reasons set forth below, the motion granted. 

BACKGROUND

Plaintiffs seek to conditionally certify, pursuant to 16(b) of the Fair Labor 

Standards Act, all Mariano’s Meat Managers (a/k/a Manager of Meat or Manager of 

1 The parties disagree about whether Roundy’s Supermarkets, Inc. (the corporate owner) qualifies as 

an employer. (Answer, ¶ 8, 10, 16). For purposes of this motion, the Court will refer to both defendants 

colloquially as “employers.”

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Meat and Seafood, and including “Bench” Meat Managers) (“MMs”) and Mariano’s 

Bakery Managers (a/k/a Manager of Bakery and including “Bench” Bakery 

Managers) (“BMs”), employed by Defendants Roundy’s Supermarkets Inc. and 

Roundy’s Illinois, LLC, d/b/a/ Mariano’s (“Defendants”) at any location, any time from 

April 14, 2017 to the present. 

DePyper worked as a MM (and occasionally as a Travel Team Manager) at 

various Mariano’s branches from January of 2014 through January of 2019. (Dkt. 1,

¶ 8). Milashus worked as a BM at two Mariano’s branches from May of 2018 through 

March of 2019. (Complaint, Dkt. 1, ¶ 10). 

Neither the Plaintiffs nor the Defendants dispute that it is and has been the 

Defendants’ policy to classify salaried BMs and MMs as exempt from the overtime 

requirements of the FLSA, and that as such they are not paid at the overtime rate 

when they work more than 40 hours in one week. (Dkt. 1, ¶ 37; Dkt. 16, ¶ 30). 

DePyper and Milashus take issue with this classification, alleging that because 

neither they nor any similarly situated employees were involved in “hiring, firing, 

disciplining, directing the work of other employees, or exercising meaningful 

independent judgment and discretion” they should not be classified as exempt. (Dkt. 

1, ¶ 35). The Plaintiffs further allege that the Defendants “did not perform a personby-person analysis” of the actual duties of BMs or MMs before classifying them as 

exempt. (Dkt. 1, ¶ 38). And once classified as exempt, the Plaintiffs allege that Store 

Managers observed that BMs and MMs were “primarily performing manual labor and 

non-exempt duties” but did not change their exemption status. (Dkt. 1, ¶ 40). Finally, 

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Plaintiffs allege Defendants instituted policies that prevented Plaintiffs from 

accurately recording all the hours that they actually worked. (Dkt. 1, ¶ 43). The 

Defendants deny each of these allegations. (Dkt. 16, ¶¶ 32–36, 38, 40).

LEGAL STANDARD

Section 216(b) of the FLSA “gives employees the right to bring their FLSA 

claims through a ‘collective action on behalf of themselves and other ‘similarly 

situated’ employees.” Alvarez v. City of Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 

29 U.S.C. § 216(b)). Because FLSA lawsuits cannot proceed as class actions, “they are 

opt-in representative actions.” Schaefer v. Walker Bros. Enterprises, Inc., 829 F.3d 

551, 553 (7th Cir. 2016). 

Because the FLSA does not lay out collective action procedures, district courts 

have “wide discretion” to determine how these suits should proceed. Weil v. Metal 

Technologies, Inc., 925 F.3d 352, 357 (7th Cir. 2019) (citing Alvarez, 605 F.3d at 449).

Courts in this district generally employ a two-step process. At step one, the 

conditional certification stage, a plaintiff “must show that there are similarly situated 

employees who are potential claimants.” See Russell v. Ill. Bell. Tel. Co., 575 F. Supp. 

2d. 930, 933 (N.D. Ill. 2008). “The conditional approval process is a mechanism used 

by district courts to establish whether potential plaintiffs in the FLSA collective 

action should be sent a notice of their eligibility to participate and given the 

opportunity to opt in to the collective action.” Ervin v. OS Rest. Servs., Inc., 632 F.3d 

971, 974 (7th Cir. 2011). The plaintiffs’ burden is to make a “modest factual showing 

sufficient to demonstrate that they and potential plaintiffs together were victims of a 

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common policy or plan that violated the law.” Russell, 575 F. Supp. 2d. at 933. To 

decide whether plaintiffs meet this burden, courts employ a “lenient interpretation”

of the term “similarly situated”. Ivery v. RMH Franchise Corp., 280 F. Supp. 3d 1121, 

1133 (N.D. Ill. 2017). 

To meet the modest factual showing standard, plaintiffs must provide “some 

evidence in the form of affidavits, declarations, deposition testimony, or other 

documents to support the allegations that other similarly situated employees were 

subjected to a common policy that violated the law.” Pieksma v. Bridgeview Bank 

Mortg. Co., LLC, 2016 U.S. Dist. LEXIS 177177, at *1 (N.D. Ill. Dec. 22, 2016) 

(internal quotations omitted). However, conditional certification is not automatic and 

to proceed as a collective action, plaintiffs must “demonstrate similarity among the 

situations of each plaintiff beyond simply claiming that the FLSA has been violated; 

an identifiable factual nexus that binds the plaintiffs together as victims of a 

particular violation of the overtime laws generally must be present.” Briggs v. PNC 

Fin. Servs. Grp., Inc., 2016 U.S. Dist. LEXIS 33703, at *2 (N.D. Ill. Mar. 16, 2016) 

(citations omitted). If these plaintiffs can show that others are similarly situated, the 

court may “conditionally certify the case as a collective action and allow notice of the 

case to be sent to similarly situated employees who may then opt in.” Grosscup v. 

KPW Mgmt., Inc., 261 F. Supp. 3d 867, 870 (N.D. Ill. 2017).

Importantly, the merits are not decided at this stage. The court “does not make 

merits determinations, weigh evidence, determine credibility, or specifically consider 

opposing evidence presented by a Defendant.” Bergman v. Kindred Healthcare, Inc.,

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949 F. Supp. 2d 852, 855–56 (citation omitted). The second step of the two-step 

process is more stringent. “[F]ollowing the completion of the opt-in process and 

further discovery, the Defendant may ask the Court to reevaluate the conditional 

certification to determine whether there is sufficient similarity between the named 

and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." 

Russell, 575 F. Supp. 2d at 933 (internal quotations and citations omitted).

ANALYSIS

Defendants make two arguments: (1) that conditional certification is improper 

because the named Plaintiffs and the employees they seek to represent are not 

“similarly situated,” and (2) that the proposed notice procedure is improper.

A. Similarly Situated Plaintiffs

Defendants first argue that because the actual duties performed by the named 

Plaintiffs differ substantially from the duties attributed to BMs and MMs in 

corporate documents such as job descriptions, the named Plaintiffs and the managers

they seek to represent are not “similarly situated.” (Dkt. 31 at 3). This argument 

relies on the assumption that those other managers actually are performing the 

duties detailed in corporate job descriptions (i.e. that there was a “disparity between 

Plaintiffs’ actual job duties and the actual job duties of other individuals that were 

meat and bakery managers”). (Id. at 4). Because this assumption is contradicted by 

the record, and because the Defendants do not contest the validity of that record 

(except to call the Plaintiffs’ declarations “self-serving,” Dkt. 31 at 3) this argument 

is not persuasive.

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In his signed declaration, DePyper describes his duties as non-managerial, 

saying that they included “cutting meat, waiting on customers, preparing, cooking, 

and wrapping meat department orders, throwing [or unloading] both fresh and frozen 

meat deliveries, making sure the shelves were filled, and cleaning.” (DePyper 

Declaration, Dkt. 28, ¶¶ 9–10). While he was a MM, DePyper states that he was 

“scheduled to work 50 hours every week” (Id., ¶ 7) and that he was a salaried 

employee classified as exempt from the overtime requirements of the FLSA. (Id., ¶ 6).

DePyper also states that he has worked as a MM at five different Mariano’s 

stores, including the Ukranian Village, Westchester, Wheaton, Bloomingdale, and 

Frankfort branches, that he was in “frequent contact” with the MMs at other 

branches, and that while he was a Travel Team Manager he worked with the MMs

at many more Mariano’s stores. (Id., ¶¶ 3–5). DePyper goes on to say that his duties 

as a MM “remained the same [. . .] at all of the different Mariano’s locations where 

[he] worked.” (Id., ¶¶ 9–11). Moreover, based on conversations he had with other MMs 

at various Mariano’s, he believes that MMs “company-wide” are all classified as 

“salary-paid overtime exempt” and are “regularly scheduled to and required to work 

overtime hours” at their normal rate of pay despite having non-managerial “duties 

and responsibilities [that] are all substantially similar” to his own. (Id., ¶ 12).

Milashus states in her signed declaration that she was required to work a 

minimum of 50 hours each week (Milashus Declaration, Dkt. 28, ¶ 7), that she 

primarily performed manual labor and other non-exempt work such as “baking, 

waiting on customers, preparing bakery department orders, stocking shelves and 

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displays, and cleaning” (Id., ¶ 9), and that these duties involved “very little 

management responsibility.” (Id., ¶ 10). Nevertheless, she states that she was 

classified as a salaried employee exempt from the requirements of the FLSA. (Id., 

¶ 6).

Milashus also states in her declaration that she worked as a BM at the 

Mariano’s locations in Elmhurst and Westchester. (Id., ¶¶ 3–4). In her capacity as a 

BM, Milashus says that she “was in frequent contact with the BMs at other local 

Mariano’s supermarkets.” (Dkt. 28, ¶ 5). Based on conversations with these other 

BMs, and based on her experiences at two different Mariano’s locations (where BM

duties “were the same”) she believes that all BMs share the same “duties and 

responsibilities,” that they are all classified as “salary-paid overtime exempt,” and 

that they are all scheduled to work overtime at their normal rate of pay. (Id., ¶ 12).

As the named Plaintiffs argue in their briefs, these declarations could support 

the theory that, assuming the named Plaintiffs were misclassified as exempt, other

Mariano’s MMs and BMs may also be misclassified, because they are also performing 

duties that are unlike the managerial duties described in their job descriptions. At 

this early stage, that is sufficient evidence that plaintiffs in the putative collection 

“together were victims of a common policy or plan that violated the law.” Slaughter 

v. Caidan Mgmt. Co., 317 F. Supp. 3d 981, 990 (N.D. Ill. 2018). At the conditional 

certification stage such a theory need only be supported by evidence such as 

“affidavits, declarations, [and] deposition testimony,” which Milashus and DePyper

have provided. Pieksma v. Bridgeview Bank Mortg. Co., LLC, 2016 U.S. Dist. LEXIS 

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177177, at *1 (N.D. Ill. Dec. 22, 2016) (internal quotations omitted). The Plaintiffs 

have therefore made the required “modest factual showing” that there is a class of 

similarly situated plaintiffs working as BMs and MMs across multiple Mariano’s 

stores based on conversations between the named Plaintiffs and other Managers. In 

light of the Plaintiffs’ declarations, the corporate job descriptions that purport to 

summarize their duties are not dispositive. Defendants will have an opportunity to 

prove that some or all other BMs and MMs in fact did perform managerial duties 

similar to those in their job descriptions, but that question is not properly before the 

Court at this time. At step two, “[d]iscovery will permit the parties to show which 

putative class members, if any, are exempt, and which are not.” Boltinghouse v. 

Abbott Labs., Inc., 196 F. Supp. 3d 838, 842 (N.D. Ill. 2016). For now, the Court is 

“tasked only with determining whether it can ‘envision a scenario’ where Plaintiffs 

and potential collective action members are similarly situated.” Slaughter v. Caidan 

Mgmt. Co., LLC, 317 F. Supp. 3d 981, 989 (N.D. Ill. 2018).

B. Notice and Production of Information

Plaintiffs have provided a proposed notice. Plaintiffs propose sending the 

notice to potential collective members both by first class mail and by email. Email 

notice would be delivered via a hyperlink to a PDF rather than as a PDF attachment,

and would utilize the third-party administrator’s online portal to collect electronically 

signed consent forms from collective members. If a potential collective member cannot 

be reached by either first class mail or email (i.e. both notices are returned as 

undeliverable) then the Plaintiffs would send a notice via text message. Only as a last 

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resort would Plaintiffs use social security numbers to seek alternative ways of 

communicating with potential collective members.

Half-way through the opt-in period, Plaintiffs propose sending a reminder in 

the mail and via email to prospective collective action members who have not yet 

responded. 

Plaintiffs request that the Defendants “produce [. . .] within seven days a 

computer-readable data file containing the names, last known mailing addresses, last 

known telephone numbers, last known personal and work email addresses, dates of 

employment and work locations for all collective members, and the social security 

numbers for those members whose notices are returned undeliverable.” (Dkt. 28 at 

13–14). 

The Defendants do not object to the form of the notice, the production of names, 

mailing addresses, dates of employment, work locations, social security numbers, or 

the collection of electronic signatures through an online portal. Defendants have

raised that following objections:

1. Email Addresses

Defendants argue that the Court should not require the production of email 

addresses. Defendants ignore recent cases that allow for email service, including 

some cases in which Roundy’s and Mariano’s were the defendants. See, for example,

Kujat v. Roundy’s Supermarkets, Inc., et al., No. 18 CV 5326, 2019 WL 1953107 (N.D. 

Ill. May 2, 2019) (providing plaintiffs with telephone numbers, email addresses, and 

social security numbers if other methods fail); Bigger v. Facebook, 375 F. Supp. 3d 

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1007, 1025 (ordering the production of email address, telephone number, and Social 

Security Numbers as well as other information) (partially reversed and remanded on 

other grounds); Ruffolo v. LaSalle Grp., Inc., No. 18 CV 3305, 2019 WL 978659 (N.D. 

Ill. Feb. 28, 2019 (ordering the production of both email address and telephone 

numbers). Because virtual communication has become ubiquitous, Plaintiffs are 

granted leave to serve notice via email. Plaintiffs’ request for personal email 

addresses is also granted. 

In the alternative, the Defendants argue that if Plaintiffs are allowed to send 

emails to putative class members, that those emails should only go to personal email 

accounts, not to corporate email accounts. The Defendants do not cite any cases or 

advance any arguments in support of their position. It is the Plaintiffs’ position that 

personal email addresses may be outdated (particularly if they haven’t been updated 

since an employee or former employee first applied for their job). They argue that 

because current Mariano’s employees have corporate email addresses, these should 

also be provided. Because these corporate email addresses are more likely to be valid 

and current, this is a reasonable request and will be granted.

2. Phone Numbers for Text Messages

Defendants object to producing the telephone numbers of putative collective 

action members and allowing notice by text message, arguing that written notice via 

first class mail (and email) is sufficient. Plaintiffs ask leave to send a single text 

message to potential collective members who cannot be reached by either first class 

mail or email. Defendants rely on Muir v. Guardian Heating & Cooling Servs., No. 

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16 CV 9765, WL 959028 (N.D. Ill. Mar. 13, 2017). But in Muir, plaintiffs wanted to 

use text messages to contact every possible collective action member. The Muir court 

found that this would be duplicative since those people were also getting emails. Id. 

at 10. In this case, Plaintiffs will send a text message only when email and first-class 

mail notices have failed. See Haugen v. Roundy’s Illinois, LLC d/b/a Mariano’s, No. 

18 CV 7297 (citation not yet available, order at Dkt. 54) (approving this process of 

text notification when emails and first-class mailings are undeliverable).

Because text messages are far less obtrusive than telephone calls and because 

only otherwise-unreachable people would receive text messages, this part of the 

Plaintiffs’ proposed notice procedure is approved by the Court. 

3. Reminder Notices

Next, the Defendants argue that a reminder notice should not be allowed, both 

because it would be unnecessarily intrusive, and because it might be interpreted as 

a message from the Court itself encouraging potential plaintiffs to join the lawsuit.

2

Defendants cite Hudgins v. Total Quality Logistics, LLC, No. 16 CV 7331, 2016 WL 

7426135, at *18 (N.D. Ill. 2016) (absent evidence that email and first class mail are 

ineffective, reminders would be “unnecessary and overly intrusive” and” could be 

interpreted as encouragement by the Court to join the lawsuit”); Slaughter v. Caidan 

Mgmt. Co., LLC, 317 F. Supp. 3d 981, 992 (N.D. Ill. 2018) (same). The Court is 

2 Plaintiffs cite several cases that come to the opposite conclusion, including, among others, Kujat v. 

Roundy’s Supermarkets, Inc., et al., No. 18 CV 5326, 2019 WL 1953107 (N.D. Ill. May 2, 2019); Haugen 

v. Roundy's Illinois, LLC d/b/a Mariano’s, No. 18 CV 7297 (citation not yet available, order at Dkt. 

51); Pfefferkorn v. Primesource Health Grp., LLC, No. 17 CV 1223, 2019 WL 354968 (N.D. Ill. Jan. 29, 

2019). These requests were all unopposed and are therefore unpersuasive. 

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persuaded by the reasoning of these cases. Plaintiffs’ proposal to send a reminder 

notice is denied.

4. Use of PDF Attachments

The Defendants also argue that if notice is sent by email, then the notice should 

be sent as a PDF attachment rather than in the body of an email. The Defendants 

cite several cases in which the Court has required notification to come in the form of 

a PDF, pointing to the potential for text in the body of an email to be altered and 

forwarded to unintended recipients.3

Plaintiffs have filed a signed declaration by Tarus Dancy, a representative of 

their third-party notice administrator. (Dancy Declaration, Dkt. 28). Mr. Dancy

states that a notice in the body of an email is preferable to a notice in an attachment. 

First, he says that there is a “high risk of the sender being flagged as a spammer 

when mass emails are sent with attachments.” (Id. at 1). According to Mr. Dancy, this 

could have various negative consequences, including intended recipients not 

receiving notice emails, and the third-party notice administrator being accused of 

violating the CAN-SPAM Act. In order to prevent fraudulent forwarding of the kind 

contemplated by the Defendants, Mr. Dancy describes how each proposed notice 

email would contain a unique hyperlink which could only be accessed by the original 

3 The defendants cite three cases in support of this argument, including cases decided by this Court: 

Colon v. EYM Pizza of Ill., LLC, 2019 U.S. Dist. LEXIS 178056, *12 (N.D. Ill. 2019) (Rowland, J.); 

Lieberman v. Altounion Constr., Inc., 2019 U.S. Dist. LEXIS 207440, *8 (N.D. Ill. 2019)(Rowland, J.); 

Muir v. Guardian Heating & Cooling Servs., 2017 U.S. Dist. LEXIS 35232, at *29 (N.D. Ill. 2017) 

(“[m]indful of ‘the [undesirable] potential for recipients to modify and redistribute email messages,’ 

the Court requires that the notice be emailed as a .pdf attachment rather than included in the body of 

the email message”). However, the Court is persuaded by the information contained in Mr. Dancy’s 

declaration to revise its previous thinking on the matter. 

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recipient, not by subsequent recipients to whom such an email might be forwarded.

This hyperlink would bring the recipient to an unalterable PDF of the notice.

Because this solution adequately addresses the danger of fraudulent alteration 

of the notice, and because it avoids the problems associated with notices being flagged 

as spam, the Plaintiffs’ proposal will be adopted.

5. Production Deadline

Relying on challenges caused by the pandemic, Defendants request 30 days to 

respond with the requested information. The Court finds this a reasonable request. 

CONCLUSION

For the stated reasons, Plaintiffs’ motion for step-one notice of their Fair Labor 

Standards Act collective action is granted as follows:

(1) Parties shall submit to the Court’s proposed order box 

(Proposed_Order_Rowland@ilnd.uscourts.gov), a proposed agreed confidentiality 

order on or before November 16, 2020.

(2) Defendants shall produce the names, dates of employment, locations of 

employment, last known addresses, personal email addresses, corporate email 

addresses, and cellular telephone numbers of the following “Collective Members”: 

Defendants’ current and former Bakery Managers and Meat & Fish Managers who 

were employed during any week from April 14, 2017 through the present at any of 

Defendants’ locations. (“Employee Information”).

(3) Defendants shall provide the Employee Information in an electronic form 

that can be used by the Plaintiffs in delivering the Court-approved Notice. If the 

information is not stored electronically, Defendants shall provide it in written form. 

This information must be produced to Plaintiffs within 30 days of the entry of this 

Order. 

(4) The Court authorizes that the Notice and Consent Form submitted as 

Exhibit 8 to Plaintiffs’ motion (Dkt. 28) may be sent to those individuals whose names 

are being provided as required by this Order along with a self-addressed, postage paid 

return envelope for U.S. Postal Mailing. The Notice and Consent forms shall be 

mailed by first class mail and may also be sent electronically in the manner described 

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above. The Court authorizes Notices to be sent via text message if and only if both 

email Notices and mailed Notices are returned undeliverable. 

(5) Opt-in collective members are given 60 days after the date the Notice and 

Consent forms are mailed to file a Consent to Join form opting-in to this litigation

(6) A Consent to Join that is postmarked on the deadline is considered timely. 

Consents received by mail without postmarks are considered timely if received within 

five business days of the deadline. Plaintiffs shall provide the Court with a notice 

indicating the date on which the Notice forms were initially mailed. 

(7) Within 10 days after the close of the Opt-In Period, Plaintiffs’ counsel will 

file the consent forms for the Opt-In Plaintiffs. 

(8) Within 30 days after the close of the opt-in period, the Parties shall confer

pursuant to Rule 16(b) and prepare an Initial Status Report as provided for on the 

Court’s website.

Dated: November 9, 2020

E N T E R:

MARY M. ROWLAND

United States District Judge

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