NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NICK AQUILINO, et al.,

 Plaintiffs,

v.

HOME DEPOT, U.S.A., INC., 

 Defendant.

Civil Action No.: 04-04100 (PGS)

OPINION

This matter comes before the Court on a motion to decertify a conditional collective action,

filed by Home Depot U.S.A., Inc. (hereinafter Home Depot or “Defendant”). Edward Novak and

Ahmed Elmaghraby (collectively “Plaintiffs”) are former assistant store managers for Home Depot,

who allege that they and other merchandising assistant store managers (MASMs) were misclassified

as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201,

et seq. Plaintiffs were granted conditional collective action certification on September 6, 2006. 

Defendant now moves to decertify the conditional collective action, arguing that Plaintiffs cannot

meet the burden of establishing that they are similarly situated to the proposed class, as required to

obtain their final collective action certification. For the following reasons, the Court grants

Defendant’s motion to decertify the conditional collective action and declines to create certified

subclasses for declaratory relief or training period overtime claims. 

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I. PROCEDURAL HISTORY

On August 25, 2004, Plaintiff Novak initiated this action, alleging that Defendant violated

the FLSA, New Jersey law, and the state laws of twenty-four other states. Shortly thereafter, in

October 2004, Plaintiff Novak’s case was consolidated with Aquilino v. Home Depot, Inc., which

was filed on the same day as Novak. 

1

On April 1, 2005, Plaintiffs moved under § 216(b) of the FLSA for conditional certification

of a nationwide opt-in collective action, consisting of “all similarly situated former and current

Merchandising Assistant Store Managers.” In October 2005, Magistrate Judge Ronald Hedges

granted Plaintiffs’ request for conditional collective action certification, and on September 6, 2006,

this Court affirmed the conditional certification. Aquilino v. The Home Depot, Inc., No. 04-4100,

2006 U.S. Dist. LEXIS 66084 (D.N.J. Sept. 6, 2006). In affirming, this Court explained that it was

utilizing a “less stringent” standard for certification because it was the “early phase” of the proposed

collective action. Id. at *5. However, this Court expressly stated that conditional certification “may

be revisited (by a motion for decertification), if it later appears, after appropriate discovery, that the

additional plaintiffs who opt in the law suit are not similarly situated.” Id. In November 2006,

Plaintiffs sent notice of the collective action to approximately 12,728 current and former Home

Depot MASMs. Initially, 1747 Opt-In Plaintiffs (Opt-Ins) joined in the litigation; however, only

1502 Opt-Ins remain due to either dismissal for failure to comply with discovery orders or voluntary

withdrawal of claims.

Concurrently, inDecember 2005, Plaintiffsmoved for class certification under Fed. Rule Civ.

P. 23(b)(3) and requested creation of a separate state class for each of the twenty-five state law

Former Plaintiff, Nick Aquilino, whose name still appears in the caption of this case, is 1

no longer a party to this action.

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claims. On July 17, 2006, this Court denied class certification under Rule 23(b)(3), concluding that

the state law claims predominated over the federal law claims. Aquilino v. Home Depot U.S.A., Inc.,

No. 04-4100, 2006 U.S. Dist. LEXIS 48554 (D.N.J. July 17, 2006). 

Plaintiff Novak filed his New Jersey class claims in New Jersey state court on August 17,

2006, and then removed the action to federal court on October 10, 2006. He moved, under Rule

23(b)(2) and (3) for class certification of current and former MASMs that worked in Home Depot

stores in New Jersey. This Court denied Plaintiff Novak’s request for certification of a class of New

Jersey MASMs on August 27, 2009. See Novak v. Home Depot U.S.A., Inc., 259 F.R.D. 106 (D.N.J.

2009) (“Novak II”). Defendants now seek to decertify the conditional collective action certification,

which was granted pursuant to § 216(b) of the FLSA. 

II. BACKGROUND

Defendant Home Depot is a national retail store that sells home improvement products and

services. Home Depot has created the position of MASM. MASMs are the second-highest ranking

employee in a Home Depot, subordinate to only the store manager. Each store employs between one

and seven MASMs. 

At the heart of this case is whether MASMs were misclassified as exempt from the FLSA;

thus, it is necessary to review the responsibilities and duties of a MASM that would be considered

when deciding whether a position could qualify as exempt. Looking to the deposition testimony of

the Opt-Ins it is apparent that MASM testimony about job responsibilities and duties varies from

MASM to MASM. Variations are evident in the type of exempt work that the Opt-Ins performed,

the extent of the Opt-In MASMs’ authority over subordinate employees, and the amount of time that

the Opt-Ins spent performing exempt work.

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A. MASM Performance of Exempt Work

The MASMs have differing descriptions of how they directed and supervised employees,

planned work for employees, ordered inventory, and ensured safety, security, and legal compliance

within Home Depot stores. 

There is wide variation in how MASMs directed and supervised employees. There is no

uniformityin how often MASMs directed the work of subordinate employees. Jason Yount delegated

on a daily basis, whereas Angela Ashworth delegated tasks “every day or once a week,” depending

on the “actual need of the department.” Frederick Carter noted that when a department head was

absent, he may have to “show” the subordinate employees how to complete the work and “do it with

them.” As for supervising employees, Andrew Goldring summarized that his supervision was

“relative to the person and relative to traffic, it’s relative to different departments of what has to get

done.” Connie Healy’s supervisory responsibilities depended on “a lot of situational things,” and

would increase and expand if she was in charge of more departments. In contrast, Christopher Akeret

admitted that he “never really watched associates.”

MASMs apparently had discretion to determine how to plan or delegate the work within their

departments. A portion of MASMs utilized work lists to plan the work within their departments, but

it does not appear that this was done in a consistent way by each MASM. Some MASMs prepared

the work lists themselves, while others delegated the job of creating work lists to department

supervisors. The work lists also did not cover a uniform time period in that some were created daily

and some were created weekly. There was also no uniformity over MASMs conducting staff

meetings to plan and delegate work assignments – MASM Jerry Walls conducted store meetings two

to three mornings per week; Alan A’Neals and Ashworth conducted weekly staff meetings; Greg

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Beyroutey held department meetings once every two to three months; and Dina Dixon held both

weekly staff meetings, as well as biweekly meetings with her department heads. 

The MASM testimony bears out that MASM ordering authority was inconsistent. Joel

Weinstein explained that to discern the authority that MASMs had to order, it would be necessary to

go store to store and speak to each MASM individually. Such testimony is indicative of the spectrum

of authority given to MASMs to order products. At one end of the spectrum are MASMs who

acknowledged that they played an active role in ordering the products for their departments. Then,

there are MASMs who played a more minimal role in ordering because the store managers monitored

and controlled all of the ordering for the store. Finally, there are MASMs who maintain that

InventoryManagement Associates and Operations Assistant Store Managers retained primarycontrol

over the entire ordering process. 

Deposition testimony also reveals discrepancies in how MASMs approached resolving

employee concerns and grievances and effectuating safetyand securitywithin the Home Depot stores.

The handling of employee grievances was a regular responsibility for some MASMs. However, a

portion of MASMs testified that they had no role in addressing employee grievances. When it came

to safety and security, there were MASMs that self-described a high level of ownership and

responsibility for safety and security within their respective stores – Healy constantly monitored the

store for safety hazards; Dixon conducted opening and closing safety walks, provided safety

reminders at opening and closing meetings, and monitored possible theft situations on a daily basis;

Amanda Adamson developed a hazmat compliance program for disposing of waste in the paint

department; and Araceli Mendoza utilized a safety checklist when opening and closing the store. 

Conversely, Elmaghrabydid not express an enhanced responsibilityfor safetyand securityin the store

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due to his position as a MASM; he explained that “every associate in the building [was] responsible

for safety.” 

MASMs described their role in ensuring that store employees abided by store policies and

legal requirements to differing extents and in different ways. William Boyce would observe workers

on the floor to ensure that they were not violating Home Depot’s sexual harassment policy,

antidiscrimination policy, or the code of conduct. Dixon explained her efforts towards ensuring legal

compliance by explaining that she would walk the sales floor to see if there was any improper conduct

and to ensure that no one was harassed or discriminated against. Healy acknowledged that she was

responsible for ensuring that employees did not engage in harassment or discrimination, but she also

had a practice of referring potential legal issues to human resources. Yet, Davis’s expression of his

responsibility for guaranteeing that no harassment or discrimination took place is altogether different;

he claimed no responsibility, stating instead that it was the responsibility of human resources to

handle such situations and that employees would go to human resources or the store manager for such

complaints. 

B. The Authority of MASMs Over Subordinate Employees

The authority of MASMs over subordinate employees in regards to hiring, promoting,

evaluating, disciplining, and terminating employees is not consistent from MASM to MASM. To

illustrate, some Opt-Ins like Jenny Macias and Kevin McVannan recruited, interviewed, and hired

associates, but other Opt-Ins, like Donald Furbush, claimed no role in hiring. Still other MASMs

participated in interviews and made hiring recommendations, but did not have the sole authority to

make final hiring decisions. 

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There is also divergence in how MASMs described their role in promoting employees. There

are MASMs that developed associates for promotion, but there are also MASMs that did not believe

that they were expected to develop associates for promotion purposes. MASM A’Neals said that he

could independently make hiring decisions and claimed responsibility for promoting over 100

workers to department supervisor. By contrast, MASMs Esau Leal and Akeret maintain that they had

no involvement with promotion decisions. It appears that of those who had authority to recommend

promotion of associates, such recommendations were not given the same weight. Some MASMs

expressed that their recommendations were usually followed, other MASMs’ recounted that their

recommendations were generallynot followed, and some other MASMs stated that theywere required

to reach consensus on promotion recommendations. 

Similarly, there were inconsistencies in how MASMs evaluated employees. MASM A’Neals

commented that evaluating employees was an important part of his job and that his evaluation would

affect an associate’s raise. David Diaz’s responsibility for evaluating employees entailed identifying

the employee’s strengths and creating a plan for the employee’s professional development. MASM

Edward Spadoni described his role in evaluating employees differently; he would provide the store

manager with a recommendation who in turn would make the rating determination. Frederick Carter

could input on the reviews, but did not recall writing an entire evaluation.

The authority that MASMs had to discipline and terminate employees was not uniform from

MASM to MASM. A group of MASMs alleged that they could independently discipline and did not

need approval to discipline. Other MASMs indicated that theycould informallydiscipline employees

independently, but that they needed approval before issuing formal discipline. Somewhat differently,

another group of MASMs stated that they could not independently issue discipline, rather theyneeded

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assistance from the human resources manager to discipline. In regards to MASM authority to

terminate employees, some MASMs claim they had authority to terminate employees; others would

make recommendations for termination; others would conduct termination sessions. 

C. The Amount of Time MASMs Spent Performing Exempt Work

There are great disparities in the Opt-Ins’ testimony in regards to the amount of time that the

Opt-Ins spent performing exempt responsibilities and duties. There are Opt-In MASMs that testified

that a majority, if not all, of their time was spent performing exempt tasks, such as overseeing and

managing employees, delegating work tasks, hiring, evaluating, promoting, etc. . . But, in direct

contradiction, there are Opt-In MASMs that said that a majority of their time was spent on nonexempt manual tasks, such as unloading freight, stocking shelves, and assisting customers. Another

group of Opt-Ins, however, recounted that the amount of time spent on exempt work depended on the

seasons and the departments to which they were assigned. For example, Andrew Goldring explained

that during the summer months, the high demand of the garden department required him to perform

manual tasks, such as packing out flowers or bringing in trucks, for seventy-five to eighty percent of

his time. 

Testimony was also inconsistent when it came to the amount of time that Opt-Ins spent as the

Manager on Duty (MOD). Cindy Wade explained that the MOD is “responsible for managing the

store.” According to David Rivett, he was MOD “[w]henever [he] was on the clock.” Similarly,

James Porche stated “[b]asically when I get to work, I’m MOD from the time I hit the door until the

time I leave.” Dina Dixon testified that she spent eighty percent of her time as MOD. In contrast,

Kenneth Terrill recounted that he never served as an MOD because the MOD program was enacted

around the time that he quit his position. Jerry Walls stated that he worked at one Home Depot store

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that had a MOD schedule, but that another store that he worked at did not. 

III. LEGAL STANDARD: COLLECTIVE ACTION CERTIFICATION

Under the FLSA, employers are required to pay employees covered by the FLSA a minimum

wage and overtime for any hours worked by the employee in excess of forty hours per week. 29

U.S.C. §§ 206, 207. However, the FLSA contains an exemption to that mandatory requirement for

employees that serve in a bona fide executive, administrative, or professional capacity. See id. at §

213(a). An employee qualifies as exempt if he or she meets the following four criteria: the employee

(1) receives compensation on a salary basis; (2) is charged with the primary duty of managing the

enterprise in which the employee is employed or of a customarily recognized department or

subdivision thereof; (3) the employee customarily and regularly directs the work of two or more

employees; and (4) has authority to hire or fire other employees or the employee’s “suggestions and

recommendations as to the hiring, firing, advancement, promotion or any other change of status of

other employees are given particular weight.” 29 C.F.R. § 541.100(a)(1)-(4).

If an employee is not exempt from the requirements of the FLSA and has not been paid for

overtime work, the employer is “liable to the employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an

additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Section 216(b) of the FLSA

provides a mechanism for the recovery of such unpaid wages and compensation, allowing “any one

or more employees . . . on behalf of himself or themselves and other employees similarly situated”

to bring an action in Federal Court. Such an action is known as a “collective action,” and “allows

potential [collective action] members who are similarly situated to the named plaintiffs to file a

written consent with the court to opt in to the case.” Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.

Supp. 2d 493, 495 (D.N.J. 2000) (citing 29 U.S.C. § 216(b)). 

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The term “similarly situated” is not defined in the FLSA and neither the United States

Supreme Court nor the Court of Appeals for the Third Circuit has provided guidance on its meaning. 

Manning v. Goldbelt Falcon, LLC, No. 08-3427, 2010 U.S. Dist. LEXIS 104029, *3 (D.N.J. Sept.

29, 2010) (citing Kronick v. Bebe Stores, Inc., No. 07-4514, 2008 U.S. Dist. LEXIS 78502 (D.N.J.

Oct. 2, 2008)). Therefore, courts in the Third Circuit have followed a two-step analysis set forth in

Lusardi v. Xerox Corp., 188 F.R.D. 351 (D.N.J. 1987). See id; Zavala v. Wal-Mart Stores, Inc., No.

03-5309, 2010 U.S. Dist. LEXIS 63530, *5 (D.N.J. June 25, 2010). The first step of the analysis is

conducted in the beginning of the litigation when plaintiffs apply for conditional certification of the

collective action, whereas the second step occurs when discovery is mostly complete and the case is

ready for trial. See Manning, 2010 U.S. Dist. LEXIS 104029, at *3-4. Therefore, it is possible for

plaintiffs to meet their burden in the initial analysis, but fail in the secondary analysis. Id.

The inquiry during the first analysis, commonly referred to as the notice stage, is “whether

plaintiff’s proposed class is constituted of similarly situated employees.” Zavala, 2010 U.S. Dist.

LEXIS 63530, at *5 (citing Morisky, 111 F. Supp. 2d at 497). This analysis occurs early in the

litigation when the court only has minimal evidence; thus, the analysis uses a “fairly lenient standard”

and usually results in the grant of conditional certification. Id. Courts in our district have noted that

“some courts require ‘nothing more than substantial allegations that the putative class members were

together the victims of a single decision, policy, or plan in violation of law.’” Id. (quoting Morisky,

111 F. Supp. 2d at 497) (editing marks omitted). Once conditional certification is granted, notice is

sent to the potential members of the collective action. 

The secondary inquiry, commonly known as the “decertification stage,” occurs later in the

litigation when the case is readying for trial. Morisky, 111 F. Supp. 2d at 497. If the defendant moves

to decertify the conditional collective action, then the court will again consider whether the plaintiffs

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are similarly situated to the remainder of the members of the collective action. However, plaintiffs

are subject to a higher burden of proof during this second inquiry because the court “has much more

information on which to base its decision.” Manning, 2010 U.S. Dist. LEXIS 104029, at *5-6; see

also Zavala, 2010 U.S. Dist. LEXIS 63530, at *7 (citing Morisky, 111 F. Supp. 2d at 497). To

determine at this stage whether the plaintiffs have met their burden of showing that they are similarly

situated, the court examines various factors, including (1) the “disparate factual and employment

settings of the individual plaintiffs,” (2) “the various defenses available to defendants,” and (3)

“fairness and procedural considerations.” Lusardi, 118 F.R.D. at 359. 

To proceed to trial as a collective action, plaintiffs must meet their burden of establishing that

they are similarly situated; otherwise, the conditional collective action will be decertified. Id. at 352;

Ingram v. Coach USA, Inc., No. 06-345, 2008 U.S. Dist. LEXIS 5935, *13 (D.N.J. Jan. 28, 2008);

Morisky, 111 F. Supp. 2d at 497. “Because this often requires a determination as to whether an

employee has exempt or nonexempt status, courts examine the employee’s duties, responsibilities,

salary, and ‘time spent performing administrative duties.’” Ingram, 2008 U.S. Dist. LEXIS 5935, at

*13 (quoting Morisky, 111 F. Supp. 2d at 498). Accordingly, a conditional collective action

certification should only be converted into a final collective action certification where “the plaintiffs

make some showing that the nature of the work performed by other claimants is at least similar to

their own.” Morisky, 111 F. Supp. 2d at 498 (internal quotations, citations, and editing marks

omitted).

Plaintiffs in this action were previously granted conditional collective action certification on

September 6, 2006. Defendants have now moved for decertification of the conditional certification. 

Therefore, this Court must now engage in the more rigorous inquiry of whether plaintiffs are similarly

situated to the Opt-Ins as required for final collective action certification. 

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IV. COLLECTIVE ACTION CERTIFICATION UNDER § 216(b) OF THE FLSA

A. The Disparate Factual and Employment Settings

The first factor for the Court to consider at the decertification stage is the disparate factual and

employment settings of the individual MASMs. Because the underlying issue is whetherHome Depot

properly classified MASMs as exempt from the FLSA, deciding whether members of the MASM

collective action are similarly situated requires “an individual, fact-specific analysis of each

employee’s job responsibilities under the relevant statutory exemption criteria.” Morisky, 111 F.

Supp. 2d at 498; King v. West Corp., No. 8:04CV318, 2006 U.S. Dist. LEXIS 3926, *43 (D.Neb. Jan.

13, 2006) (citations omitted). In this case, that means that the Court must examine the deposition

testimony of the MASMs to discern whether MASMs uniformly carried out similar duties and

responsibilities, which would render them executives under the FLSA. However, similarities in the

job responsibilities and duties performed byMASMs are not solely enough to establish that plaintiffs

are similarly situated “because the similarities necessary to maintain a collective action under §

216(b) must extend beyond the mere facts of job duties and pay provisions.” Zavala, 2010 U.S. Dist.

LEXIS 63530, at *7 (internal quotation marks and citation omitted).

Plaintiffs claim that they have an overwhelming amount of evidence to support the

demonstration of the exemption issue through common proof. Plaintiffs argue that the design of the

MASM position supports a denial of decertification because Home Depot never evaluated whether

the activities performed by the MASMs diverged from the MASM job description, did not engage

in any studies to discern how a MASM spends his or her time on the job, and has not reevaluated the

exempt status of the MASM position since an “internal evaluation” in 2000. Plaintiffs cannot rely

on common proof evidence of Home Depot’s decision to classify the MASM position as exempt

because courts have made clear that “[m]erely showing that the employer classified a group of

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employees as exempt is not sufficient to establish that [those] employees are similarly situated for the

purposes of an FLSA collective action.” King, 2006 U.S. Dist. LEXIS 3926, at *41 (citation omitted);

see also Morisky, 111 F. Supp. 2d at 498 (finding defendants’ “common scheme” of classifying

employees as exempt did not bind class sufficiently such that plaintiffs were “similarly situated”). 

Additionally, Plaintiffs have not explained why the alleged failure to compare the actual day-to-day

activities of MASMs to Home Depot’s description of the position or Home Depot’s failure to evaluate

the exempt status of the MASM position supports continued certification. 

Plaintiff continues on to describe Home Depot’s centralized corporate structure and appears

to advance that such structure causes MASMs nationwide to have identical duties. Quite simply, the

deposition testimony of the Opt-Ins does not bear our that Home Depot’s centralized corporate

structure resulted in MASMs performing identical duties. To the contrary, the MASM testimony

clearlyevidences that MASM duties and responsibilities significantlyvaried from MASMtoMASM. 

Courts have recognized that “employees with the same job title are not ‘similarly situated’ for the

purposes of an ‘opt-in’ FLSA class if their day-to-day job duties vary substantially.” King, 2006 U.S.

Dist. LEXIS 3926, *43 (citing Morisky, 111 F. Supp. 2d at 495, 499 n. 8); see also Mike v. Safeco Ins.

Co. of Am., 223 F.R.D. 50, 54 (D. Conn. 2004) (denying Rule 23(b) certification and noting “class

membership is not founded upon [a company] policyor other generalized proof, but rather on the factspecific determination of each individual plaintiff’s day to day tasks”).

Plaintiffs also assert that as a result of a “staffing graph” and policy changes, MASMs have

to perform non-exempt duties. Apparently, the performance of those non-exempt tasks overlap with

the responsibilities of positions that are non-exempt and the performance of such non-exempt tasks

relegates MASMs to non-exempt status. MASM performance of non-exempt tasks or duties as a

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result of Defendant’s staffing graph, policy change, or corporate structure is of no consequence in this

instance because even assuming arguendo that Plaintiffs could establish through common proof that

MASMs performed non-exempt tasks as a result of a staffing graph, policy change, or corporate

structure, the fact that Plaintiffs “may have spent a majority of their time performing non-exempt

tasks does not establish sufficient similarities to warrant class certification.” Reyes v. Texas EZPawn,

L.P., No. V-03-128, 2007 U.S. Dist. LEXIS 1461, *9 (S.D.Tex. Jan. 8, 2007) (citing Smith v.

Heartland Auto. Srvcs., Inc., 404 F. Supp. 2d 1144, 1152 (D. Minn. 2005)). For that same reason,

Plaintiffs’ additional arguments – that MASMs were charged with the primary duty of customer

service, not management and that MASM duties were substantially similar to those of non-exempt

employees – do not establish Plaintiffs are similarly situated. See id.

Plaintiffs’ final argument is that MASM compensation was less than the non-exempt

departments supervisor’s compensation thereby evidencing the non-exempt nature of the MASM

position. Plaintiff advances that whether an employee’s primary duty is management requires a

consideration of the salaried employee’s hourly rate of pay when that employee is required to work

a minimum number of hours each week. While compensation is relevant to the exemption analysis, 

none of the cases utilized by Plaintiffs to support their assertion evidence that such analysis should

be employed at the decertification stage of a collective action. See Morgan v. Family Dollar Stores,

551 F.3d 1233, 1239, 1271 (11th Cir. 2008) (considering plaintiff’s hourlywage on appeal, following

jury trial in collective action); Thomas v. SpeedwayAmerica, LLC, 506 F.3d 496 (6th Cir. 2007)

(affirming district court’s determination that plaintiff was exempt under the FLSA); Clougher v.

Home Depot, U.S.A., 696 F. Supp. 2d 285-86 (E.D.N.Y. 2010) (considering plaintiff’s hourly pay rate

in individual action for overtime compensation under New York labor law); Johnson v. Big Lots, 604

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F. Supp. 2d 903, 918 (E.D. La. 2009) (following decertification of collective action, judge considered

relationship of plaintiff’s hourly wage to subordinates). Again, Plaintiffs argument misses the mark

of illustrating that Plaintiffs are similarly situated.

Overall, there are substantial differences in the factual and employment settings oftheOpt-Ins.

The deposition evidence clearly establishes that MASM job responsibilities and duties varied from

MASM to MASM, from store to store, from shift to shift, and in some cases from subordinate

employee to subordinate employee. Those significant variations preclude this Court from finding any

real uniformity among the Plaintiffs and the Opt-Ins. If collective action certification were

maintained, the Court would have to engage in numerous individualized determinations to discern

whether each specific Opt-In qualifies as an executive. Therefore, the disparate factual and

employment settings of Plaintiffs do not weigh in favor of continued certification.

B. Defenses Available to Defendant

The second factor for the Court to consider is “whether the potential defenses pertain to the

opt-in class as a whole or whether, many different defenses will be raised with respect to each

individual plaintiff.” Reyes, 2007 U.S. Dist. LEXIS 1461, at *25 (citing Moss, 201 F.R.D. at 409). 

Courts have granted motions for decertification based on this factor because individualized defenses

inhibit the efficiency of proceeding on a collective basis. Id. (citing Moss, 201 F.R.D. at 410).

Nevertheless, it is within the District Court’s discretion as to “‘whether the potential defenses would

make the class unmanageable.’” Zavala, 2010 U.S. Dist. LEXIS 63530, at *10 (quoting Moss, 210

F.R.D. at 410). 

Defendant has indicated that it intends to present individualized evidence as to each Opt-In’s 

claims and that the record reveals that it is not possible to establish the Plaintiffs’ daily tasks through

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common testimony. Additionally, Defendant intends to bring to light contradictions between

individual Plaintiffs’ resume statements, declarations or interrogatory answers, and deposition

testimony. Plaintiffs do not present any arguments related to this factor that contradict Defendant’s

arguments. 

The Court finds that the potential defenses of Defendant would make collective treatment of

this action unmanageable. The deposition testimony evidences that it is not possible to develop

common testimony from the MASMs regarding their daily responsibilities and duties. As previously

noted, the determination of whether a MASM satisfies the executive exemption criteria is “an

individual, fact-specific analysis of each employee’s relevant statutory exemption criteria.” Morisky,

111 F.Supp. 2d at 498; see also Reyes, 2007 U.S. Dist. LEXIS 1461, at *26 (acknowledging in

defense analysis that “the degree of discretion and authority each [opt-in Plaintiff] exercised varied

depending on store management and store demographics, making this case particularly unsuitable for

collective treatment when applying exemption analysis”). Defendant is entitled to question each

individual Opt-In about his or her managerial responsibilities to illustrate that MASMs qualify as

exempt managers. In addition, Defendant is entitled to impeach the credibility of individual Opt-Ins

by bringing to light misrepresentations about duties that they may have made on their resumes. 

Further, Defendants mayalso try to impeach the credibilityof individual Opt-Ins byquestioning those

Opt-Ins about contradictoryresponses given when providing declarations, interrogatory answers, and

deposition testimony. Such individual questioning would likely make it difficult and confusing for

the fact finder to make both credibility determinations and to discern whether each individual Opt-In

is exempt under the FLSA. Indeed, the Appellate Division of the California Superior Court

recognized the following difficulties:

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In addition to issues of basic honesty, depending on point of view, a

MASM may in good faith describe a task differently. If a MASM is

stocking shelves with a number of hourly associates, one MASM may

see their role as supervisory, which is an exempt activity, while

another MASM might describe it as simply stocking shelves, a nonexempt activity. At some point, a trier of fact will have [to] make

individual decisions on these characterizations and credibility.

In re Home Depot OvertimeCases, No. JCCP4229, 2006 WL 330169, *4 (Cal. Super. Feb. 2, 2006). 

Accordingly, the Court finds that the individualized defenses for each Opt-In weighs against

continued certification.

C. Fairness and Procedural Considerations

The final factor “direct[s] the court to consider the primary objectives of the FLSA collective

action: (1) to lower costs to the plaintiffs through the pooling of resources, and (2) to limit the

controversy to one proceeding which efficiently resolves common issues of law and fact that arise

from the same alleged activity.” Reyes, 2007 U.S. Dist. LEXIS 1461, at *28 (citing HoffmanLaRoche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 

Defendant contends that fairness and procedural considerations weigh against collective

treatment because litigating this action on a collective basis would confuse the fact finder and unduly

prejudice Defendant. Defendant articulates that judicial efficiency would not be enhanced because

(1) the parties would be forced to litigate individualized issues, (2) there is no benefit to the judicial

system or litigants because jurors would be overwhelmed byindividualized issues and litigants would

be required to expend financial resources to travel to a district where they have no ties, and (3)

allowing this case to proceed as a collective action would infringe upon Defendant’s due process

rights because it would be unfair and unmanageable to require Defendant to litigate the claims of

1500 Opt-Ins from across the country in a single action. Again, Plaintiffs do not appear to advance

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an argument, which directly controverts Defendant’s contentions. 

This Court recognizes that allowing Plaintiffs to pursue their claims in a collective action

promotes the first objective of § 216(b) in that it may lower the costs to the individual plaintiffs

because it allows them to pool resources. Additionally, allowing this case to proceed as a collective

action would promote judicial economy because it would allow for one case to proceed instead of

1500 separate actions. Nevertheless, the Court must also recognize the potential unfairness and

procedural difficulties that may arise in allowing this case to proceed as a collective action. As

previously noted, there are numerous factual differences surrounding the Opt-Ins’ day-to-day

responsibilities and duties. Because Defendant intends to explore individualized defenses, which

would require the trier of fact to determine whether an individual Plaintiff MASM is exempt under

the FLSA, this Court has serious concerns as to whether a collective action would be most efficient

and whether the Court could “coherently manage” the collective action without prejudice to the

parties. Moss, 201 F.R.D. at 410; see also Reyes, 2007 U.S. Dist. LEXIS 1461, at *29. On balance,

this factor weighs in favor of decertification. 

Based on the foregoing analysis, the Plaintiffs have not met their burden of establishing that

they are similarly situated to the Opt-Ins; rather, all three factors for final collective action

certification weigh in favor of decertification. Accordingly, the conditional collective action is

decertified. In light of that conclusion, the Court will consider Plaintiffs’ alternative argument that

subclasses for declaratory judgment and training period overtime claims should be created.

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V. CREATION OF SUBCLASSES

Plaintiffs argue that this Court should maintain subclasses for both declaratory relief and for

training period claims. First, Plaintiffs assert that in Dillon v. Coles, 746 F.2d 998, 1004 (3d Cir.

1984), the Court of Appeals for the Third Circuit held that a class may be entitled to injunctive relief

barring the continuation of a discriminating policy, where the representative class establishes that

disparate treatment is the employer’s standard practice. Plaintiffs maintain that they have established

that Home Depot’s blanket policy of classifying all MASMs as exempt is unlawful because Home

Depot never tested or analyzed the daily activities of the MASM position before determining that the

position of MASM is exempt from the requirements of the FLSA. 

Plaintiffs cite no authority to support the notion that it is illegal or improper for employers to

classifya position as exempt without testing or analyzing the position’s dailyactivities. Additionally,

Plaintiffs do not cite any cases where a § 216(b) subclass was maintained for the purpose of 

declaratory judgment. In light of the absence of supporting authority, this Court declines to create

a subclass of MASMs for declaratory relief. Moreover, if evidence that an employer uniformly

classified a position as exempt is not enough, in and of itself, to prove that plaintiffs are similarly

situated for an FLSA collective action, King, 2006 U.S. Dist. LEXIS 3926, at *41, it does not

logically follow that such evidence would support the creation of a subclass.

Second, Plaintiffs argue that the Court should a create subclass for training period claims. 

Plaintiffs explain that Defendant is not exempt from its FLSA obligation to provide overtime to

MASMs in training because the FLSA specifically excludes training time from the executive

exemption. Plaintiffs argue that MASMs are not executives during their training because Home

Depot calls MASMs in training “ASM trainees” or “in training,” the training period is temporary in

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that it lasts up to eight weeks, and Home Depot gives a training manual to MASMs to complete. In

response, Defendant argues that an ASM trainee subclass would be inappropriate because “ASM

trainees” are a separate and distinct group of employees, Plaintiffs’ complaint did not provide fair

notice of a training period claim, the Court did not conditionally certify a class of ASM trainees, and

Plaintiffs cannot show that ASM trainees are similarly situated. 

Considering those arguments, the Court will not create a subclass for ASM training claims. 

The Central District of California considered whether class certification was properfor ASM training

claims in a case brought by two of the Opt-Ins in this case. See Menodza v. Home Depot, U.S.A., Inc.,

No. CV 09-05843, 2010 U.S. Dist. LEXIS 13025, *7-9, 32 (C.D. Cal. Jan. 21, 2010). The arguments

advanced by the Opt-Ins before the Mendoza Court are similar to the arguments now raised by

Plaintiffs. In rejecting the request for class certification of an ASM training class, the Mendoza Court

acknowledged that “because there is no uniform policy or standard operating procedure upon which

all ASMs and training ASMs rely, it is likely that each ASM’s and training ASM’s experience is

unique.” Id. at *25. Additionally, the MendozaCourt echoed this Court’s finding in Novak II, stating

that “where there are dissimilarities between the individual ASM’s duties, such ‘dissimilarities must

be evaluated on a case-by-case basis.’” Id. at 27 (quoting Novak II, 259 F.R.D. at 106). In light of the

likelihood that an ASM training subclass would require an individualized determination of whether

each Plaintiff was an executive during training, the Court declines to create such a subclass for all of

the reasons previously expressed in Section IV of this opinion.

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VI. CONCLUSION

For the foregoing reasons, Defendant’s motion to decertify the conditional collective action

is granted. Plaintiffs’ request to create certified subclasses for declaratory relief or training period

overtime claims is denied. 

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

February 15, 2011

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