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Thompson v. Speedway Superamerica LLC: US District Court : CIVIL PROCEDURE - no showing of corporation decision, policy or plan not to pay FLSA-required wages

TINA DADO, individually and on behalf of
all others similarly situated,
Case No. 08-CV-1107 (PJS/RLE)
This matter is before the Court on plaintiffs objection to Chief Magistrate Judge
Raymond L. Ericksons August 21, 2008 Report and Recommendation (R&R). Judge
Erickson recommends denying plaintiffs motion for conditional certification of a collective
action. The Court has conducted a de novo review under 28 U.S.C. 636(b)(1) and Fed. R. Civ.
P. 72(b), and has also considered plaintiffs request for oral argument. Based on that review, the
Court adopts Judge Ericksons R&R and finds that oral argument is unnecessary.
Plaintiffs, who were formerly employed at defendants convenience stores, bring this
action under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and state law
alleging that defendants failed to pay them for all of the hours that they worked. The complaint
alleges that plaintiffs were not compensated for a wide range of tasks, including answering
work-related phone calls when they were not at work, performing surveys of the prices that
competitors were charging for gasoline, and filling in for absent employees, assisting with
staffing needs, completing paperwork, cleaning, and running errands for Speedway. Compl.
1Judge Erickson said the following with respect to plaintiffs other allegations:
In addition, we note that the Plaintiffs have alleged that
they were required to perform a number of other tasks off the
clock, beyond conducting gasoline price surveys and answering
16. Plaintiffs further allege that they were also required to work through mandatory meal and
rest breaks without compensation . . . . Id.
A plaintiff who seeks conditional certification of a collective action against an employer
must do more than show that some employees were paid less than the FLSA required.
Defendant Speedway SuperAmerica (SSA) employs thousands of workers in 1600 stores
scattered throughout nine states. In just about any organization as large and diffuse as SSA,
mistakes will occasionally be made, and employees will occasionally not receive compensation
to which they are entitled under the FLSA. When that occurs, those employees can sue and
recover the wages that they are owed. But to go further and receive conditional certification of a
large nationwide class, those employees must come forward with evidence establishing a
colorable basis for their claim that the putative class members were together the victims of a
single decision, policy, or plan. West v. Border Foods, Inc., No. 05-2525, 2006 WL 1892527,
at *2 (D. Minn. July 10, 2006) (citation and quotations omitted). It is not sufficient for plaintiffs
simply to allege that a single decision, policy, or plan has injured all members of the putative
class; instead, plaintiffs must show that there is some factual basis beyond the mere averments
in their complaint for the class allegations. Id. (citation and quotations omitted).
Although the complaint in this case is drafted very broadly, plaintiffs focus on the alleged
failure of SSA to pay for two specific tasks: answering work-related phone calls and performing
gas-price surveys.1 The Court agrees with Judge Erickson that conditional certification should
telephone calls, on an irregular basis. . . . Given that each Plaintiff
alleges a unique set of tasks, which were irregularly performed, we
find those allegations further evidence that this case is
inappropriate for certification, and would be wholly
R&R at 24 n.5.
Plaintiffs have no real answer to Judge Ericksons concerns. They neither express a
willingness to dismiss the claims that are not related to answering phone calls or surveying gas
prices, nor suggest any realistic way of trying those claims on a class-wide basis. The Court thus
agrees with Judge Erickson.
be denied. It is undisputed that SSA maintains a formal policy that requires that all hourly
associates be paid for all time spent working, scheduled or non-scheduled, on behalf of
Speedway SuperAmerica LLC. Voss Aff. Ex. D at 2, 5, 8, 10, 12. The policy specifically
requires that all hourly associates called at home by the Store to discuss a work-related matter[]
must be paid for the time spent working at home. Voss Aff. Ex. D at 2, 5, 8, 10, 12. The policy
further specifically requires that [i]n the event that gas price surveys are conducted by hourly
management personnel outside of their scheduled shift, they must submit time for
reimbursement. Voss Aff. Ex. D at 14, 16, 18, 19. In other words, the only formal policies
regarding answering work-related phone calls and performing gas-price surveys require that
members of the putative class be paid for those activities.
Plaintiffs have submitted evidence that a handful of employees were not compensated for
answering work-related phone calls or performing gas-price surveys (just as SSA has submitted
evidence that other employees were compensated for these activities). As noted, though, this is
not sufficient to merit conditional certification of a collective action. Instead, plaintiffs must
submit evidence that the reason why the employees were not compensated for these tasks is not
because of human error or a rogue store manager, but because of a corporate decision to ignore
SSAs published policies and refuse to pay for answering work-related phone calls or performing
gas-price surveys. The Court agrees with Judge Erickson that, for several reasons, plaintiffs
have failed to establish a colorable basis that such a policy-to-violate-the-policy exists.
In objecting to Judge Ericksons R&R, plaintiffs spend much time setting up and
knocking down straw men. Plaintiffs are particularly apt to take one of the many factors that
Judge Erickson considered, characterize Judge Erickson as holding that the presence or absence
of the particular factor would always defeat an attempt to conditionally certify a collective
action, and then complain that Judge Ericksons holding was inconsistent with the case law
and would mean the end of wage-and-hour litigation.
To cite one example: Judge Erickson based his recommendation in part on the fact that,
at best, plaintiffs evidence establishes that a tiny fraction considerably less than one percent
of the putative class was not paid for answering work-related phone calls and performing gasprice
surveys. Plaintiffs complain that Judge Erickson imposed an Unprecedented Requirement
of Numeric Substantiality (to quote a heading from their brief) a requirement that would
require class members to somehow learn of the litigation and opt-in en masse as a prerequisite to
court-facilitated notice. Plfs. Obj. 6-7. Judge Erickson did no such thing. Instead, Judge
Erickson made the common-sense observation that if SSA had really made a corporate decision
to refuse to pay about 8,000 putative class members for answering work-related phone calls and
performing gas-price surveys after assuring their employees in published corporate policies
that they would be paid for such activities then one would expect that more than a handful of
those 8,000 putative class members would complain of being cheated by SSA. Judge Erickson
made the equally common-sense point that because those complaints come from such a tiny
fraction of the putative class, they are very weak evidence of the existence of a nationwide
corporate policy.
Similarly, plaintiffs complain that Judge Erickson erroneously imposed an impossible
burden when he observed that plaintiffs do not allege the existence of an identical, regularly
scheduled task that is always uncompensated. Again, the point is not that FLSA plaintiffs must
always be identically situated. The point is that proof of an identical, regularly scheduled task
that is always uncompensated would suggest the existence of a corporate policy. As plaintiffs
lack such evidence, they must look elsewhere to support their allegations.
Plaintiffs point to two other pieces of evidence in support of a corporate policy. First,
plaintiffs cite a 2003 statement by SSAs human-resources director, quoted in a Department of
Labor compliance-action report, stating that Speedway has changed corporate policy by
eliminating the Gas Surveys to all Assistant Managers. Nauen Aff. Ex. 2 at 7. Plaintiffs argue
that this statement is persuasive evidence that a central corporate policy related to gas-price
surveys exists. But there is no dispute that a central corporate policy related to gas-price surveys
exists. The policy is quoted above, and it requires that employees be paid for conducting gasprice
surveys. The 2003 statement provides no evidence that SSA has made a corporate decision
not to comply with its own policy, especially given that this statement was made in the context
of an investigation of a single store that took place five years ago, and given that the corporate
official who made this statement also insisted at the same time that the alleged violations did not
reflect a corporate policy to deny payment for conducting gas-price surveys. This single
2Defendants argue that plaintiffs failed to raise this argument in their briefing before
Judge Erickson, and move to supplement the record with an affidavit to address this purportedly
new argument. Defendants are incorrect: plaintiffs squarely raised this argument in their moving
memorandum submitted to Judge Erickson. See Docket No. 29 at 5 (The authorized hours are
calculated to include labor hours necessary to physically staff the store, but not to include work
such as gas price surveys and phone calls that happen away from the store.). The Court
therefore denies defendants motion to supplement the record.
sentence isolated, ambiguous, and five years old is much too thin a reed to support a
conditional collective action.
Second, plaintiffs argue that they have offered direct evidence of a central policy in the
declaration of Josh Fields, a former Speedway store manager. Fields states that, in accordance
with Speedways normal practice, a district manager informed him of the number of authorized
labor hours he had to operate his store. Fields Decl. 5. (As all sides agree, defendants have a
method of calculating the number of authorized hours for each store.) According to Fields, the
authorized hours were calculated to include employees regular shifts, but did not include the
work that took place outside the store, as well as work that employees would perform before and
after their shifts while in the store. Fields Decl. 5. Thus, plaintiffs claim, it is defendants
corporate policy to exclude time spent on tasks outside the store from their calculations of
authorized hours.2 Again, however, this evidence relates to only one of SSAs 1600 stores; it
does not provide a colorable basis for the existence of a central corporate policy, particularly in
light of the evidence that SSA has submitted that the labor-hour budget for each store includes
In sum, although plaintiffs have submitted evidence that a tiny fraction of the 8,000
members of the putative class may not have received some of the compensation that they were
due under the FLSA and under SSAs own published policies, plaintiffs have not established a
colorable basis for their claim that SSA implemented a corporate decision to ignore its published
policies and refuse to compensate assistant managers, shift leaders, and co-managers for
answering work-related phone calls at home and for performing gas-price surveys. The Court
therefore adopts the R&R and denies plaintiffs motion.
Based on all of the files, records, and proceedings herein, the Court ADOPTS the
August 21, 2008 R&R [Docket No. 49]. IT IS HEREBY ORDERED that:
1. Plaintiffs motion for certification of collective action and to permit courtsupervised
notice [Docket No. 22] is DENIED.
2. Defendants motion for leave to supplement the evidentiary record [Docket
No. 54] is DENIED.
Dated: January 20, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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