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Reichert v. Hoover Foods, Inc.

United States District Court, N.D. Georgia, Atlanta Division

November 21, 2017

KEGAN REICHERT, on behalf of himself and those similarly situated, Plaintiff,
HOOVER FOODS, INC., a Georgia Corporation, Defendant.



         This matter is before the Court on Plaintiff Kegan Reichert's (“Reichert”) Motion for Conditional Certification [29].

         I. BACKGROUND

         This is a putative collective action brought by Plaintiff against his former employer, Hoover Foods, Inc. (“Hoover” or “Defendant”). On December 13, 2016, Reichert filed his Complaint [1] “on behalf of himself and all other similarly situated assistant managers who worked for Defendant at their Wendy's locations throughout the Southeastern United States.” (Compl. ¶ 1). Reichert asserts claims for overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and seeks liquidated damages and attorney's fees.

         To support his Motion for Conditional Certification, Plaintiff submits his deposition testimony [29-6] and [30-1], the deposition testimony of Hoover's Rule 30(b)(6) representative, Glenn Varner (“Varner”) [29-5] and [30-2], Defendants Interrogatory Responses [29-2], and the declarations of two opt-in plaintiffs, Paulette Clay (“Clay”) [29-7] and Colette Mazzuca (“Mazzuca”) [29-8] (together, “Opt-in Plaintiffs” or “Declarants”).

         Plaintiff maintains that Defendant Hoover operates around 44 Wendy's restaurant franchises. ([30-2] Varner Depo. at 9). Plaintiff testified that Defendant employed him as an assistant manager from July 8, 2015, through August 24, 2016. ([30-1] Reichert Depo at 38, 112, 114). Citing Defendant's interrogatory response, Plaintiff asserts that he is among approximately 270 other current and former assistant managers employed by Defendant since January 1, 2014. ([29-2] at 7-15). Defendant classified Plaintiff, and all other assistant managers, as exempt employees. (Id. at 3, 18). Defendant paid Plaintiff a salaried rate of $455 per week and did not pay overtime. (Id. at 3).

         Plaintiff testified that he worked for Defendant at five different locations as an assistant manager. ([30-1] at 25-28). Varner testified that Defendant worked to operate each of its locations in a uniform fashion. ([30-2] at 33). According to Varner, the general duties of an assistant manager were the same at all of Defendant's locations. (Id. at 32). Defendant maintains that all of Defendant's assistant managers are paid a salary and bonuses. (Id. at 22). Varner testified that a normal schedule for assistant managers was five, 10-hour shifts each week.

         Declarant Clay states that she worked at Defendant's Woodstock, Georgia, location as an assistant manager for several years before leaving in May 2016. ([29-7] ¶ 4). Clay asserts that “[a]ssistant managers are required to work at least fifty hours per week because we typically were scheduled for five 10-hour shifts.” (Id. ¶ 6). Clay also states that Defendant did not have a sick time policy and that she “understood the policy to be that if you missed a day of work for illness you wouldn't get paid.” (Id. ¶ 7). Clay maintains that she “worked with many other assistant managers and we all did the same job duties and were paid the same way. We were all treated the same and the same policies applied to all of us.” (Id. ¶ 8).

         Declarant Mazzuca states that she worked at Defendant's Woodstock, Georgia, location as a general manager from October 2012 to February 2016. ([29-8] ¶ 4). Mazzuca asserts that “[a]ll managers, including assistant managers, were scheduled to work each week for at least fifty hours.” (Id. ¶ 6). Mazzuca further states that Defendant “did not have a sick time policy” and that the “rule for all managers, including assistant managers was if you did not work one day you were docked a day's pay, regardless of why you were out.” (Id. ¶ 7).

         Plaintiff claims that Defendant willfully “misclassified” assistant managers as exempt employees and failed to compensate them for overtime. (Compl. ¶¶ 22-27). Plaintiff asserts that Defendant's assistant managers are not exempt employees because they “had no ability to hire or fire employees, [and] were not involved in interviewing or other aspects of firing/hiring.” (Compl. ¶ 18). Plaintiff also claims that Defendant's assistant managers are not exempt employees because Defendant docked their pay for absences, including for illness, and effectively did not pay assistant managers on a salary basis. (Comp. ¶ 18).

         Defendant asserts that its assistant managers are properly classified as exempt employees because their role “consisted of managing the restaurant . . . including supervising and directing the work of multiple employees (known as ‘crew members').” ([29-2] at 4). Defendant maintains that its assistant managers perform a number of supervisory tasks, including crew member training, creation of the work schedule for crew members, assigning each crew member to their specific role in the restaurant on a daily basis, evaluating and conducting performance reviews of crew members, disciplining crew members, and interviewing potential crew member candidates. ([29-2] at 5). Defendant asserts that “it had a policy of compensating its assistant managers, including Plaintiff, for sick time that was supported by medical documentation, such as a doctor's note” and that it “requested, but did not require” assistant managers to make up undocumented time missed. ([29-2] at 18). Nevertheless, Varner testified that Defendant “went back [the] past three years and paid anybody that had any time docked, ” including all assistant managers. ([30-2] at 80-83). Varner further testified that, with respect to its sick time policy and compensation for previously docked pay, Defendant endeavors to “treat everybody the same. We don't have different rules for general managers and assistant managers. Everybody is the same.” (Id. at 88).

         On May 5, 2017, Plaintiff moved to conditionally certify a class of “[a]ll assistant managers who worked at any of Hoover's Wendy's locations from [three years prior to Order granting Notice] to the present.” ([29-1] at 3). Plaintiff also seeks an order requiring Defendant to produce contact information of potential class members, and authorizing Plaintiff's proposed Notice of Lawsuit (“Notice”) [29-3]. Defendant opposes conditional certification.


         A. Legal Standard to Conditionally Certify a Collective Action

         The FLSA requires covered employers to pay non-exempt employees who work more than forty hours in a week an overtime rate of one and one-half times the employee's regular pay rate for all hours worked that exceed forty. 29 U.S.C. § 207(a). Section 216(b) imposes liability on employers for violations of Section 207 and authorizes employees to bring lawsuits to recover that liability. Employees may sue individually or they may bring a collective action on behalf of themselves and other “similarly situated” employees:

An action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to ...

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