NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

JEFFERY HARRIEL, :

 : CIVIL ACTION NO. 11-2510 (MLC)

Plaintiff, :

 : MEMORANDUM OPINION

v. :

 :

WAL-MART STORES, INC., :

 :

Defendant. :

 :

COOPER, District Judge

Plaintiff, Jeffery Harriel (“Plaintiff”), brings this action

against defendant, Wal-Mart Stores, Inc. (“Wal-Mart” or

“Defendant”), on behalf of himself and others similarly situated,

asserting violations of, inter alia, (1) the Fair Labor Standards

Act (“FLSA”), 29 U.S.C. § 201 et seq., and (2) the New Jersey

Wage and Hour Law (“NJWHL”), N.J.S.A. § 34:11-56a et seq. (Dkt.

entry no. 1, Compl.) Plaintiff asserts the FLSA claim as a

collective action pursuant to 29 U.S.C. § (“Section”) 216(b), and

the NHWHL claim as a class action pursuant to Federal Rule of

Civil Procedure (“Rule”) 23. Plaintiff now moves for conditional

collective action certification. (Dkt. entry no. 27, Mot. to

Certify.) Defendant opposes the motion. (Dkt. entry no. 34,

Def. Opp’n.) Limited discovery pertaining to the issue of

collective action certification has been conducted. (Dkt. entry

no. 22, 9-26-11 Order.) The Court heard oral argument on the

motion on June 19, 2012. 

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The Court, because of the existence of a federal cause of

action under the FLSA, exercises subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1367. For the reasons stated

herein, the Court will deny the motion. 

BACKGROUND

I. Overnight Assistant Manager Position at Sam’s Club Stores

Defendant operates approximately 608 Sam’s Club stores

throughout the United States. (Compl. at ¶ 6; dkt. entry no. 28,

Lesser Decl., Ex. B, Tinsley Dep. 85:11-17.) Sam’s Club stores

generally have one overnight assistant manager position (“OAM”),

though in some instances the position is vacant and waiting to be

filled, and approximately 15-20 stores employ two OAMs. (Tinsley

Dep. 83:1-86:12.) Approximately 1,625 individuals have held the

the position of OAM since May 2008. (Dkt. entry no. 34,

Sellinger Decl., Ex. B, Roskow Decl. at ¶ 5.) According to the

Human Resources Director for the Northeast Region of Sam’s Club,

“OAMs are typically scheduled to work opposite shifts from the

Club Manager and other Assistant Managers and are therefore often

the most senior member of management in the Club while working

their shift, with ultimate responsibility for all operational and

supervisory efforts in their assigned Club.” (Roskow Decl. at ¶

7; see also Sellinger Decl., Ex. D, Dayton-Driggers Decl. at ¶ 21

(explaining that “[t]he OAM is the only manager in the building

during overnight hours”).)

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II. Plaintiff’s Employment and Termination

Plaintiff was employed by Defendant for approximately twenty

years. (Lesser Decl., Ex. C, Pl. Dep. at 15:21-23.) Beginning

in 1991, Plaintiff held various management positions at Wal-Mart. 

(Pl. Dep. at 17:15-23, 20:3-11, 21:12-17, 22:15-20, 23:20-25,

26:6-16.) He became an OAM at a Sam’s Club store in Edison, New

Jersey, in January 2010. (Compl. at ¶ 4; Pl. Dep. at 26:13-18,

74:23-75:1.) He was one of two OAMs employed at that store. 

(Pl. Dep. at 95:25-98:2; dkt. entry no. 35, Sellinger Decl., Ex.

D, Capuano Decl. at ¶ 12.) In that position, Plaintiff was

disciplined and ultimately terminated after his supervisor

received multiple written complaints from those under his

supervision, including complaints “for spying on his crew,

speaking to associates in a threatening manner, and mishandling

new hires.” (Def. Opp’n at 10; Sellinger Decl., Ex. I, Open Door

Investigation.) On October 22, 2010, Plaintiff was terminated on

the bases of inadequate “Respect for the Individual” and “Job

Performance.” (Id. at 15.) The report of that termination

observed that under Plaintiff’s control, “many aspects of his job

were not handled properly, left undone, or just ignored,” and

further noted that as an employee having twenty years with the

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company, should have done “a much better job at planning, time

management and merchandising.” (Id.)1

III. Allegations and Evidence Regarding Exempt Status of OAM

Position

Plaintiff alleges that Defendant violated Section 207 of the

FLSA by “failing to compensate Plaintiff and other [OAMs]” by

classifying the OAM position as exempt under the FLSA’s

requirement that employers pay overtime wages for hours worked

per week in excess of 40. See 29 U.S.C. § 207 (providing for

overtime pay for employees to whom the statute applies); id. §

213(a)(1) (providing that “any employee employed in a bona fide

executive, administrative, or professional capacity” is exempt

from the protections of the FLSA). (Compl. at ¶¶ 17-19, 32-36,

49.) Plaintiff contends that the OAM position should not be

considered exempt because it “required little skill and no

capital investment,” duties “did not include managerial

responsibilities or the exercise of independent judgment,” and

OAMs’ primary work included “accept[ing] shipments, stocking

 Plaintiff apparently responded to his termination by 1

advising two Sam’s Club managers that they should “expect no less

than 6 lawsuits and 2 class action suits” against Defendant. 

(Open Door Investigation at 15; Pl. Dep. at 317:11-19.) The

other OAM at the Edison store advised the store manager in a

written statement that Plaintiff “would never ‘get his hands

dirty’” as an OAM, which “would be alright if he was playing the

role of administrative manager but he wasn’t even doing that. I

still had to do evals, scheduling vacations, dealing with

associate issues[,] even ringing up associates at the end of the

night if they wanted to purchase something,” because Plaintiff

refused to do these things. (Open Door Investigation at 20.)

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merchandise, replenishing supplies and other such non-managerial

tasks.” (Id. at ¶ 34.) He further contends that OAMs did “not

have the authority to hire or fire other employees.” (Id.)2

Plaintiff relies on the “uniform job description” and

uniform job training of OAMs to support his motion for

conditional certification. Specifically, he contends that “he

performed the same non-exempt tasks that the Defendant, in its

own documents, states OAMs should perform.” (Dkt. entry no. 27,

Pl. Br. at 4.) Plaintiff further argues that conditional

certification of a nationwide collective action of all persons to

have held the OAM position at Sam’s Clubs during the relevant

time period is appropriate because “Defendant’s centrally

derived, corporate-created policies and guidelines apply to all

Sam’s Club stores nationwide.” (Pl. Br. at 5-6 (“[Defendant’s]

hierarchical, standardized business practices through which the

Defendant maintains top-down control . . . ensure that each store

operates the same way.”).)

Defendant admits that it did not pay Plaintiff or other OAMs

overtime pay in accordance with Section 207, insofar as the OAM

 At his deposition, Plaintiff conceded that as an OAM, he 2

was responsible for, e.g., training people on the overnight shift

how to properly stock merchandise, as well as supervising,

evaluating, and when necessary, disciplining the “team leads” who

worked the overnight shift. (Pl. Dep. at 108:22-109:24, 117:11-

118:3.) Plaintiff claimed that in general, he would not manage

the twenty or so employees working the night shift because he

“[d]idn’t have time; [he] was stocking.” (Pl. Dep. at 102:24-

103:3.)

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position is a salaried one, and denies that the OAM position was

misclassified as “exempt” under the FLSA. (Pl. Br. at 3; id. at

8 (stating that “[a]ll Sam’s Club OAMs are paid a fixed annual

salary . . . without consideration of the size or sales volume of

the store in which they work and the hours which any OAM

worked”).) Defendant proffers that “OAMs receive a pay and bonus

package reflective of their exempt status. . . . rang[ing] from

approximately $43,500 to as much as $68,000” in base compensation

annually. (Def. Opp’n at 6; Sellinger Decl., Ex. C, Tinsley Dep.

at 240:17-241:4.) Plaintiff, at the time of his separation from

the company, was earning an annual base salary of $60,000, “a

rate justified by the types of managerial and supervisory

functions he was expected to perform.” (Def. Opp’n at 6.) 

The parties agree that the “Assistant Manager” job

description used by Defendant covers the OAM position. (Pl. Br.

at 7; Def. Opp’n at 4-5.) That document provides, in pertinent

part, that the “essential functions” of the position require that

such person, inter alia: create budgets; drive sales by ensuring

effective merchandise presentation; assess economic trends and

community needs; ensure proper personnel procedures are followed

for selection, recruiting, and training; manage facility

operations, including participation in management meetings;

communicate with other managers and associates about operations,

merchandising, and company direction; provide direction and

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guidance to associates; oversee and enforce the execution of food

safety standards; provide supervision and development

opportunities for associates by hiring, training, mentoring,

assigning duties, providing recognition, and ensuring diversity

awareness; and work as part of the management team to ensure that

all opening and closing procedures are followed. (Sellinger

Decl., Ex. F, Assistant Manager Job Description.)

Plaintiff argues in support of the motion that he “performed

the same non-exempt tasks that the Defendant, in its own

documents, states OAMs should perform,” though the only task he

specifically refers to as falling within this non-exempt category

is “stocking various areas of the store for the next day”;

Plaintiff testified at his deposition that he “spent the majority

of his time,” up to 90%, stocking. (Pl. Br. at 4; Pl. Dep. at

148:4-19 (stating that he spent 90% of his time stocking the

store, and the other 10% performing “all the other functions of

the” OAM position).) Plaintiff also points to, inter alia,

Defendant’s Borrowing Company Assets Policy, Independent Service

Provider Policy, and Bad Weather Conditions Policy, as

demonstrating a lack of discretion in the OAM position. (Pl. Br.

at 5.) However, none of those documents contradict or undermine

the supervisory and managerial aspects of the job description

itself. 

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The “Performance Standards Reference Document” used in

evaluating Assistant Managers, including OAMs, does not include

hourly wage tasks such as stocking among the performance

standards to be assessed. Rather, that document shows that OAMs

are evaluated for acting as a conduit for bringing lower-level

associates’ ideas for improvement to upper management, developing

and implementing plans for improving the customer experience,

managing merchandising operations, planning for team-based

improvement, and supervising sales associates. (Sellinger Decl.,

Ex. H, Performance Standards Reference Document.) OAMs are also

evaluated for use of appropriate judgment to set appropriate

priorities and make optimal decisions, even in complex

situations. (Id.)

DISCUSSION

I. Collective Action Certification Under the FLSA

Section 216(b) of the FLSA permits a plaintiff to maintain

an action for such an alleged violation against an employer on

“behalf of himself . . . and other employees similarly situated.” 

29 U.S.C. § 216(b); see Rogers v. Ocean Cable Grp., Inc., No. 10-

4198, 2011 WL 6887154, at *2 (D.N.J. Dec. 29, 2011). Unlike a

traditional class action governed by Rule 23 in which class

members must opt out of the class, a FLSA collective action

requires that potential class members opt-in by providing written

consent, and file such written consent in the court where the

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action is brought. 29 U.S.C. § 216(b); Holesapple v. E-Mortg.

Mgmt., LLC, No. 11-769, 2011 WL 6887684, at *2 (D.N.J. Dec. 29,

2011) (citing Manning v. Gold Belt Falcon, LLC, 817 F.Supp.2d

451, 452-53 (D.N.J. 2011)).

The FLSA does not define “similarly situated.” See 29

U.S.C. § 203; Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d

Cir. 2007). There is a two-part test to determine whether a

putative collective action’s members are “similarly situated” so

as to allow the action to proceed as such. Rogers, 2011 WL

6887154, at *2. In the first step, or “notice stage” of the

analysis, occurring early in the case, the Court determines

whether it should conditionally certify a collective action and

give notice of the action to potential collective action members. 

Id.; Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493,

497 (D.N.J. 2000). The Court usually only has minimal evidence

before it at this stage, in the form of pleadings and affidavits

submitted by parties. Morisky, 111 F.Supp.2d at 497. As such,

the Court uses a fairly lenient standard, requiring a “modest

factual showing,” to determine whether potential collective

action members are similarly situated. Id.; see also Symczyk v.

Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011)

(“Under the ‘modest factual showing’ standard, a plaintiff must

produce some evidence, ‘beyond pure speculation,’ of a factual

nexus between the manner in which the employer’s alleged policy

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affected her and the manner in which it affected other

employees.”); Smith v. Sovereign Bancorp, Inc., No. 03-2420, 2003

WL 22701017, at *3 (E.D. Pa. Nov. 13, 2003) (rejecting “automatic

preliminary certification route” endorsed by some courts and

requiring FLSA putative collective action plaintiffs “to make a

basic factual showing that the proposed recipients of opt-in

notices are similarly situated to the named plaintiffs”).

At the second step, or “reconsideration stage,” the Court

“makes a second determination after discovery is largely complete

and the case is ready for trial.” Morisky, 111 F.Supp.2d at 497. 

At this stage, with the benefit of additional available evidence,

the Court employs a stricter standard than the notice stage. Id. 

If the Court finds at the reconsideration stage that the named

plaintiffs are similarly situated to the plaintiffs who have

opted in, the case may proceed to trial as a collective action. 

Id. At both stages, the plaintiff bears the burden of

demonstrating that he or she is similarly situated to the

proposed class and ultimately the opt-in class. Symczyk, 656

F.3d at 192-93; Troncone v. Velahos, No. 10-2961, 2011 WL

3236219, at *4 (D.N.J. July 28, 2011).

Certification at the notice stage, though governed by a

lenient standard, is not automatic. Evancho v. Sanofi-Aventis

U.S. Inc., No. 07-2266, 2007 WL 4546100, at *2 (D.N.J. Dec. 19,

2007). A plaintiff must show a “factual nexus” between his or

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her situation and the situation of other current and former

employees sufficient to determine that they are similarly

situated. Aquilino v. Home Depot, Inc., No. 04-4100, 2006 WL

2583563, at *2 (D.N.J. Sept. 7, 2006). “In spite of the modest

factual nexus evidentiary standard, courts have not hesitated to

deny conditional certification when evidence is lacking.” 

Rogers, 2011 WL 6887154, at *3 (quoting Dreyer v. Altchem Env’l

Servs., Inc., No. 06-2393, 2007 WL 7186177, at *3 (D.N.J. Sept.

25, 2007)); see Bramble v. Wal-Mart Stores, Inc., No. 09-4932,

2011 WL 1389510, at *4 (“The right to proceed collectively may be

foreclosed where an action relates to specific circumstances

personal to the plaintiff rather than any generally applicable

policy or practice.”) (citation and quotation omitted).

II. Analysis

This case, while at the notice stage, has seen significant

discovery proceed with respect to the certification issue. The

Court has carefully reviewed the exhibits provided by the parties

in support of and opposition to the motion to conditionally

certify the class, and finds that even under the lenient standard

requiring a plaintiff to make a “modest” showing of a “factual

nexus,” conditional certification must be denied, and no notice

to the putative class should issue.

The record, particularly the Assistant Manager job

description, indicates that OAMs have managerial duties

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generally, and that plaintiff, as OAM at the Edison club, was

responsible for “supervising 22 or 23 associates on the night

shift. . . . includ[ing] dock associates, night team leaders,

night crew stockers, and overnight bakers.” (Capuano Decl. at ¶

13.) According to Capuano, who was the manager of the Edison

club at the time plaintiff served as one of its two OAMs, the

OAM’s “primary function is to get the club 100% ready for opening

in the morning,” and this includes responsibility for “overseeing

merchandising, receiving, stocking, and cleaning of the Club

during the overnight shift.” (Id. at ¶ 14.)

The declarations provided by other individuals who have

served in the OAM position during the relevant time period

corroborate this assessment of the OAM position. (See generally

Sellinger Decl., Ex. D, Declarations of Current and Former OAMs.) 

These fifteen declarants each engaged in (1) receiving special

management training, (2) supervising associates, (3) analyzing

business reports, (4) training associates, (5) interviewing and

hiring associates, (6) coaching, evaluating, and terminating

associates, and (7) using their discretion in making

merchandising decisions. (Sellinger Decl., Exs. D & E.) In

contrast, plaintiff offers not a scintilla of evidence beyond his

own unsubstantiated allegations that the OAM position included

only minimal managerial tasks as he describes, e.g., that he

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spent approximately 90% of his time as an OAM performing nonmanagerial stocking tasks. 

The failure to provide the existence of even one other

person who would choose to opt in to the putative collective

action is indicative of Plaintiff’s total failure of proof that

he has anything in common with other OAMs with respect to the

subject matter of this action; rather, the record indicates that

he was terminated for cause, including failure to perform

managerial tasks that were part of his job description. (See Pl.

Dep. at 325:5-13 (statement of plaintiff that he was not aware of

any other OAMs who might want to join his lawsuit or would share

the same claim with him that he was not a true manager while

serving as an OAM); Sellinger Decl., Ex. I, Open Door

Investigation.) See Holesapple, 2011 WL 6887684, at *5-6; cf.

Bramble, 2011 WL 1389510, at *2 (noting that plaintiff’s

declaration stated only that he “believe[d]” that his experience

was typical of others in the same position and denying

certification where defendant’s evidence “largely contradict[ed]

plaintiffs’ assessments of their own job responsibilities”). 

The fact that Plaintiff alone claims he spent most of his

time performing non-managerial tasks, combined with the evidence

showing that the OAM position is subject to nationwide standards

under Defendant’s corporate policies, does not require the Court

to infer that a significant number of other OAMs would have also

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deviated from the written job description to spend most of their

time performing non-managerial tasks. See Bramble, 2011 WL

1389501, at *5-6. The existence of a job description containing 3

“many managerial tasks” applicable to a certain position, paired

with a superficial allegation that the plaintiff was improperly

classified as exempt under the FLSA, “misses the point” of a

putative FLSA collective action such as the one pursued here,

 In Bramble, as here, the plaintiffs did not argue that 3

employees holding their position were “required to perform nonexempt tasks for a majority of their working hours,” but instead

argued “‘that as a matter of fact, rather of formal job

description, they [were] performing their non-[exempt] duties for

the majority of their working hours.’” Bramble, 2011 WL 1389510,

at *5 (quoting Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1271

(M.D. Ala. 2004)). Also as here, the only evidence in Bramble

offered to show that the named plaintiffs were similarly situated

to the putative class was the four named plaintiffs’ deposition

testimony stating that the actual work they performed was nonexempt. Id. at *5 & n.6. The Bramble court “examine[d] all the

relevant evidence” at stage one of the conditional certification

analysis and determined that the four named plaintiffs failed to

“provide even modest evidence beyond their own speculation that

‘the evidence of the Plaintiff[s’] job duties is [not] merely

anecdotal evidence specific to them [and] can be more broadly

applied.’” Id. at *6 (quoting Holt, 333 F.Supp.2d at 1272). 

Finally, this action shares with Bramble and Holt the fact that

the plaintiff’s allegation regarding the amount of time spent

performing non-exempt, non-managerial tasks is directly

contradicted by declarations from other managers stating that

they did perform managerial tasks that would classify them as

exempt, having the effect that at the second stage of the

certification analysis, the court would have to inquire “as to

the daily tasks of each putative collective action member to

determine whether they are similarly situated,” an

“individualized inquiry” disfavored by the collective action

mechanism. Id. at *7. Thus, the Bramble and Holt courts both

denied conditional certification at the first stage of the

inquiry; the evidence here, of a single plaintiff, is even less

substantial than that offered and rejected by multiple plaintiffs

in those cases.

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insofar as the action “turns on the alleged discrepancy between

the job on paper and the job in practice” but the evidence fails

to show how the plaintiff and others were “similarly subjected to

an improper compensation practice” by the defendant. Tahir v.

Avis Budget Grp., Inc., No. 09-3495, 2011 WL 1327861, at *3-4

(D.N.J. Apr. 6, 2011) (denying certification where plaintiff

“proffered only general similarities between himself and other

[managers] and made conclusory, unsupported statements that all

[managers] spend the majority of their time performing . . .

manual, non-exempt labor”). Ultimately establishing an FLSA

violation under Plaintiff’s theory of the case will require an

examination of each individual OAM’s work experiences. (Def.

Opp’n at 7-10.) See Tahir, 2011 WL 1327861, at *4; see also

Rogers, 2011 WL 6887154, at *4-5; Evancho, 2007 WL 4546100, at

*2-3 (denying conditional certification where defendants’

declarations indicated that actual job responsibilities “may vary

among plaintiffs and potential collective action members”).

We therefore find that the evidence now before the Court

supports Defendant’s contention that “Plaintiff’s claimed work

experiences differ significantly not only from the corporate

documents Plaintiff points to as common to the OAM position, but

also from the work experiences of other OAMs.” (Def. Opp’n at

11.) Plaintiff has not met his burden of establishing a factual

nexus between his alleged situation and that of other employees

sufficient to determine that he is similarly situated to the

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putative class, and “any court-facilitated notice to a nationwide

opt-in class would constitute little more than solicitation on

behalf of Plaintiff’s cause.” Burkhart-Deal v. Citifinancial,

Inc., No. 07-1747, 2010 WL 457127, at *5 (W.D. Pa. Feb. 4, 2010).

CONCLUSION

The Court, for the reasons stated supra, will deny the

motion for conditional collective action certification. The

Court will issue an appropriate Order.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: July 13, 2012

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