Scott v. Chipotle Mexican Grill, Inc.

17-2208, 18-359
Scott v. Chipotle Mexican Grill, Inc.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2018

(Argued: February 13, 2019 Decided: April 1, 2020)

Nos. 17-2208-cv, 18-359-cv

MAXCIMO SCOTT, on behalf of himself and others similarly situated, JAY
FRANCIS ENSOR, CHRISTINE JEWEL GATELEY, KRYSTAL PARKER, STACY HIGGS,
EUFEMIA JIMENEZ, MATHEW A. MEDINA,

Plaintiffs-Appellants,

v.

CHIPOTLE MEXICAN GRILL, INC.,
CHIPOTLE SERVICES, LLC,
Defendants-Appellees. *

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Before:
PARKER, CHIN, and SULLIVAN, Circuit Judges.

* An additional 516 plaintiffs are listed in the attached Appendix.
 Appeal from an opinion and order of the United States District

Court for the Southern District of New York (Carter, J.) in this hybrid class and

collective action brought on behalf of employees of a national restaurant chain

who claim they were denied overtime wages because they were misclassified as

exempt employees. The district court denied the employees' motion for class

certification and granted the employer's motion to decertify the conditionally

certified collective action. The employees appeal, contending that the district

court erred in (1) denying class certification on the basis of a lack of

predominance and superiority, and (2) granting decertification of the collective

action on the ground that the named plaintiffs and opt-in plaintiffs are not

similarly situated.

AFFIRMED IN PART and VACATED IN PART.

Judge SULLIVAN CONCURS IN PART and DISSENTS IN PART in a
separate opinion.

RACHEL BIEN (Justin M. Swartz, Melissa L. Stewart, on
the brief), Outten & Golden LLP, New York, New
York; Paolo Chagas Meireles, Shavitz Law Group,
P.A., Boca Raton, Florida; Brian Scott Schaffer,
Fitapelli & Schaffer, LLP, New York, New York,
for Plaintiffs-Appellants.

2
 RICHARD J. SIMMONS (Lisa M. Lewis, Brian D. Murphy,
on the brief), Sheppard, Mullin, Richter &
Hampton LLP, Los Angeles, California, New
York, New York; Bruce A. Montoya, John Karl
Shunk, Kendra N. Beckwith, Messner Reeves
LLP, Denver, Colorado, for Defendants-Appellees.
___________

CHIN, Circuit Judge:

Plaintiffs-appellants are seven named plaintiffs representing six

putative classes under Federal Rule of Civil Procedure 23(b)(3) (the "class

plaintiffs"). Plaintiffs-appellants also sue on behalf of themselves and 516

individuals who opted in to a conditionally certified collective action (the

"collective plaintiffs") pursuant to the Fair Labor Standards Act (the "FLSA"), 29

U.S.C. § 216(b). Class plaintiffs are current and former "Apprentices" of

defendants-appellees Chipotle Mexican Grill, Inc. and Chipotle Services, LLC

(together, "Chipotle") who allege that Chipotle misclassified them as exempt

employees in violation of the labor laws in six states. Collective plaintiffs are

current and former Chipotle Apprentices who allege that Chipotle misclassified

them as exempt employees in violation of the FLSA. As a result of Chipotle's

purported misclassification, plaintiffs-appellants contend that they were

unlawfully denied overtime wages required under state and federal law.

3
 On March 29, 2017, the district court denied class plaintiffs' class

certification motion on the grounds that class plaintiffs failed to meet the

predominance and superiority requirements of Rule 23(b)(3). Scott v. Chipotle

Mexican Grill, Inc., No. 12-cv-8333, 2017 WL 1287512, at *3-8 (S.D.N.Y. Mar. 29,

2017). In the same decision, the district court granted Chipotle's motion to

decertify the collective action on the grounds that collective plaintiffs failed to

establish that opt-in plaintiffs were "similarly situated" to the named plaintiffs as

required for collective treatment under the FLSA. Id. at *8-9.

On appeal, class plaintiffs principally argue that the district court

relied on erroneous law and clearly erroneous facts in determining that common

questions of law or fact did not predominate. Collective plaintiffs contend that

the district court erred in decertifying the collective action because it relied on an

erroneous view of the law -- namely, that the FLSA's "similarly situated" inquiry

"mirrors" the Rule 23 analysis in rough proportion to the number plaintiffs who

have chosen to opt-in. For the reasons set forth below, we affirm the district

court's order denying class certification, vacate the district court's order

decertifying the collective action, and remand for further proceedings.

4
 BACKGROUND

A. The Facts

Chipotle operates over 2,000 restaurants in the United States,

serving burritos, tacos, salads, and more. To manage and operate its stores,

Chipotle employs both salaried and hourly workers. There are three categories

of salaried employees -- Restauranteurs, General Managers, and Apprentices --

not all of whom are necessarily employed at each Chipotle location. Chipotle

locations also hire hourly workers, namely Service Managers, Kitchen Managers,

and crew. As of 2016, Apprentices earned a salary of between $38,000 and

$51,500 and were eligible for benefits such as bonuses, paid vacation, insurance,

and retirement plans.

Chipotle describes the "principal responsibilities" of the Apprentice

position as "[l]eading the restaurant team in successful day-to-day operations";

"[a]cting as General Manager when General Manager is not present"; "[t]raining

and developing the restaurant team"; "[e]suring that employees are paid

properly, receive appropriate benefits, and are prepared for additional career

opportunities"; "[i]dentifying talent, interviewing, and hiring new Crew";

"[p]articipating in personnel decisions regarding the restaurant team"; "[w]riting

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schedules that meet the needs of the business"; "[a]ssisting the General Manager

in performing administrative duties including payroll, inventory, food ordering,

proper cash handling, etc."; "[s]uccessfully communicating company

changes/focus to the team"; "[b]uilding sales and managing the restaurant

budget"; "[m]aintaining a clean restaurant with excellent quality food and

customer service"; and "[m]aintaining cleaning and sanitation standards within

the restaurant." J. App'x at 4246; see also id. at 4250. The parties dispute whether

Apprentices are in training to become General Managers.

In or around 2011, Chipotle hired a consultant to opine on the

exempt status of Apprentices -- that is, whether Apprentices were entitled to

overtime or were considered "executive" or "managerial" employees and were

therefore exempt from state and federal overtime laws. After reviewing

Chipotle's uniform job description and conducting interviews with Apprentices

at various locations, the consultant concluded that the Apprentice position is

uniformly exempt from state and federal overtime laws based on the “wage and

hour” definition of an Executive. The consultant looked to the following range of

tasks of Apprentices in making this determination: (1) hiring and firing, (2)

training, (3) scheduling, (4) payroll processing, (5) writing and conducting

6
performance reviews, (6) documenting performance, (7) cash handling, (8)

managing employees during manager's absence, and (9) communicating

corporate changes. The consultant's report notes that although Apprentices

assist with manual labor, the majority of Apprentice time is spent managing the

day-to-day activities of the restaurant. Chipotle thereafter classified all

Apprentices throughout the country (except those in California) as exempt from

the overtime provisions of the FLSA and related state overtime laws based on

their salary, their actual duties, and Chipotle's reasonable expectations regarding

the duties performed.

B. Procedural History

Plaintiff-appellant Maxcimo Scott filed the initial complaint in this

case on November 15, 2011. Following a series of amendments to the pleadings

joining additional plaintiffs and adding claims, on February 10, 2015, plaintiffs-

appellants filed the operative third amended complaint, which alleges that

Chipotle misclassified its Apprentice workers and denied them overtime pay in

violation of the FLSA as well as state laws in Colorado, Illinois, Missouri, New

York, North Carolina, and Washington. Class plaintiffs purport to represent six

7
classes totaling approximately 1,600 Apprentices 1 who worked at Chipotle

locations in the six states. Collective plaintiffs consist of the seven named

plaintiffs and 516 opt-in plaintiffs who affirmatively consented to joining the

FLSA suit after the district court conditionally certified the collective action on

June 30, 2013.

On May 9, 2016, following several years of discovery -- including the

taking of over 80 depositions and the submission of over 240 declarations --

Chipotle moved to decertify the collective action on the grounds that the named

plaintiffs are not similarly situated to the opt-in plaintiffs. That same day, class

plaintiffs moved to certify six Rule 23(b)(3) classes corresponding to the six states

in which the class representatives worked. On March 29, 2017, the district court

issued an opinion and order denying class plaintiffs' motion for class certification

and granting Chipotle's motion to decertify the collective action. See generally

Scott, 2017 WL 1287512. As to the motion for class certification, the district court

held that although class plaintiffs satisfied Rule 23(a)'s threshold requirements of

numerosity, commonality, typicality, and adequacy, Scott, 2017 WL 1287512, at

1 The approximate number of represented individuals are based on May 2016
estimates generated by Chipotle's Compliance and Field People Support Director. This
figure may have changed because the classes are defined to include Apprentices
employed through "the date of final judgment."
8
*3, they failed to satisfy Rule 23(b)(3)'s requirements of predominance and

superiority, id. at *4-8. According to the district court, class plaintiffs established

commonality because "the question of whether Apprentices were misclassified as

exempt employees is common to all class members [and] can be answered with

common proof." Id. at *3. The court based this determination on the fact that (1)

"Chipotle uniformly classified all Apprentices as exempt," (2) "Chipotle has an

expectation that the core duties of the apprentice is the same regardless of the

market in which an Apprentice works," and (3) "Chipotle uses a single job

description for all Apprentices that lists 'principal accountabilities.'" Id. The

district court found these facts to be "unquestionably probative of whether an

employee is properly classified as exempt." Id. (internal quotation marks

omitted).

Ultimately, however, the district court concluded that these common

questions were outweighed by individualized ones surrounding each plaintiff's

primary duty under Labor Department regulations. Id. at *4. The district court

summarized each of the named plaintiffs' testimony regarding their primary

duty and found the testimony to be "internally inconsistent and distinguishable."

Id. It also analyzed the testimony of the opt-in plaintiffs as to a number of the

9
relevant Labor Department criteria for determining exemptions -- involvement in

personnel decisions, scheduling authority, employee supervision and training,

and amount of time spent on managerial tasks -- and found that the testimony

"rang dissonantly from the record," as some Apprentices recounted

independently running their own stores while others testified to exercising very

few, if any, managerial duties. Id. at *4-7. Thus, while the "Apprentices' range of

managerial tasks" and "range of manual labor tasks" were "similar," the district

court concluded that the "disparate accounts from Apprentices" and the

"individualized proof . . . needed to establish each class member's entitlement to

relief" rendered class plaintiffs' claims ill-suited to the class action procedures of

Rule 23(b)(3). Id. at *4, 8.

With respect to Chipotle's motion to decertify the collective action,

the district court considered whether named plaintiffs were "similarly situated"

to the opt-in plaintiffs by considering the following factors: "(1) disparate factual

and employment settings of the individual plaintiffs; (2) defenses available to

defendants which appear to be individual to each plaintiff; and (3) fairness and

procedural considerations counseling for or against collective action treatment."

10
Id. at *8 (citing Hernandez v. Fresh Diet, Inc., No. 12-cv-4339, 2014 WL 5039431, at

*3 (S.D.N.Y. Sept. 29, 2014)). 2

In analyzing the first factor -- disparate employment settings -- the

district court noted that "[c]ourts have recognized that the 'similarly situated'

analysis for purposes of the FLSA certification can be viewed, in some respects,

as a sliding scale. In other words, the more opt-ins there are in the class, the

more the analysis under § 216(b) will mirror the analysis under Rule 23." Id.

(quoting Indergit v. Rite Aid Corp., 293 F.R.D. 632, 651 (S.D.N.Y. 2013)). The court

then concluded that "Apprentices had vastly different levels and amounts of

authority in exercising managerial tasks" and noted that "disparities in job

duties" are "axiomatic considering that the 516 opt-in plaintiffs worked at 37

states across Chipotle's nine geographic regions." Id. at *8-9. The district court

considered the second and third factors -- defenses and procedural fairness --

together, and concluded that "it would be difficult for Chipotle to rely on

'representative proof' while asserting its defenses." Id. at * 9. Accordingly, the

2 In doing so, the district court was applying the second step of the two-tier
approach to determining whether named plaintiffs are similarly situated to op-in
plaintiffs. See Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). See
pp. 27-28 infra. The district court had applied step one when it conditionally certified
the collective action on June 30, 2013.
11
district court held that the named plaintiffs were not similarly situated to opt-in

plaintiffs and ordered the conditionally certified collective action to be

decertified and the claims of the opt-in plaintiffs to be dismissed without

prejudice. Id. at *9

This appeal followed. We granted class plaintiffs leave to appeal the

denial of class certification pursuant to Rule 23(f), and we granted collective

plaintiffs leave to appeal pursuant to 28 U.S.C. § 1292(b).

DISCUSSION

We begin with an overview of hybrid FLSA and state overtime

misclassification suits. We then discuss the district court's denial of class

certification and decertification of the FLSA collective action in turn.

I. Hybrid Class and Collective Actions

"Because FLSA and [state law] claims usually revolve around the

same set of facts, plaintiffs frequently bring both types of claims together in a

single action using the procedural mechanisms available under 29 U.S.C. § 216(b)

to pursue the FLSA claims as a collective action and under Rule 23 to pursue the

[state law] claims as a class action under the district court's supplemental

12
jurisdiction." Shahriar v. Smith & Wollensky Rest. Grp. Inc., 659 F.3d 234, 244 (2d

Cir. 2011).

In this hybrid class and collective action, plaintiffs claim that they

worked overtime, they were legally entitled under state and federal law to

overtime pay, and Chipotle denied them such payment. The crux of the dispute

is whether plaintiffs were entitled to overtime under the FLSA and state labor

laws. The answer to this question turns on whether Chipotle improperly

classified plaintiffs as exempt employees under Labor Department guidelines

and parallel state law, "which in turn will require the district court to decide a

number of subsidiary questions," Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir.

2010) (internal quotation marks omitted), as discussed below.

A. The FLSA

Under the FLSA, employers are required to pay employees who

work over forty hours per week "not less than one and one-half times the regular

rate at which [the employees are] employed" for those overtime hours. 29 U.S.C.

§ 207(a)(1). This requirement is subject to certain exemptions based on employee

classification. As relevant here, the FLSA exempts from the overtime

13
requirement "employee[s] employed in a bona fide executive [or] administrative

. . . capacity." 29 U.S.C. § 213(a)(1).

Administrative regulations classify employees as "executive" if (1)

they are "[c]ompensated on a salary or fee basis," (2) their "primary duty is

management of the enterprise . . . or of a customarily recognized department or

subdivision thereof," (3) they "customarily and regularly direct[] the work of two

or more other employees," and (4) they "ha[ve] the authority to hire or fire other

employees or" if their "suggestions and recommendations" on personnel

decisions "are given particular weight." 29 C.F.R. § 541.100(a). The second

element -- whether an employee's primary duty is managerial in nature --

generally requires consideration of activities such as

interviewing, selecting, and training of employees; setting
and adjusting their rates of pay and hours of work; directing
the work of employees; maintaining production or sales
records for use in supervision or control; appraising
employees' productivity and efficiency for the purpose of
recommending promotions or other changes in status;
handling employee complaints and grievances; disciplining
employees; planning the work; determining the techniques
to be used; apportioning the work among the employees;
determining the type of materials, supplies, machinery,
equipment or tools to be used or merchandise to be bought,
stocked and sold; controlling the flow and distribution of

14
 materials or merchandise and supplies; providing for the
safety and security of the employees or the property;
planning and controlling the budget; and monitoring or
implementing legal compliance measures.

29 C.F.R. § 541.102.

Regulations classify employees as "administrative" if (1) they are

"[c]ompensated on a salary basis," (2) their "primary duty is the performance of

office or non-manual work directly related to the management or general

business operations of the employer or the employer's customers," and (3) their

"primary duty includes the exercise of discretion and independent judgment

with respect to matters of significance." 29 C.F.R. § 541.200(a). The second

element -- whether the employee's primary duty is directly related to

management -- requires consideration of whether the employee "perform[s]

work directly related to assisting with the running or servicing of the business, as

distinguished . . . from working on a manufacturing production line or selling a

product in a retail or service establishment." 29 C.F.R. § 541.201(a).

The applicability of both exemptions turns on the "primary duty" of

an employee. See 29. C.F.R. § 541.2 (providing that "[t]he exempt or nonexempt

status of any particular employee must be determined on the basis of whether

the employee's salary and duties meet the requirements of the regulations"

15
defining executive and administrative employees). The regulations make clear

that these questions "should be resolved by examining the employees' actual job

characteristics and duties." Myers, 624 F.3d at 548; see also 29 C.F.R. § 541.700(a)

(providing that determining an employee's "primary duty" requires analysis of

"all the facts in a particular case," looking to the "principal, main, major or most

important duty that the employee performs"). Among other things, courts are to

consider the following factors in assessing an employee's primary duty:

the relative importance of the exempt duties as compared
with other types of duties; the amount of time spent
performing exempt work; the employee's relative freedom
from direct supervision; and the relationship between the
employee's salary and the wages paid to other employees for
the kind of nonexempt work performed by the employee.

29 C.F.R. § 541.700(a). Although the amount of time spent performing exempt

work is not dispositive, it "can be a useful guide." Id. § 541.700(b). "Thus,

employees who spend more than 50 percent of their time performing exempt

work will generally satisfy the primary duty requirement." Id.

"The exemption question under the FLSA is a mixed question of law

and fact. The question of how the employees spent their working time is a

question of fact. The question of whether their particular activities excluded

them from the overtime benefits of the FLSA is a question of law." Pippins v.

16
KPMG, LLP, 759 F.3d 235, 239 (2d Cir. 2014) (quoting Ramos v. Baldor Specialty

Foods, Inc., 687 F.3d 554, 559 (2d Cir. 2012)).

B. State Overtime Law

State exemption criteria in the six states implicated in the class

plaintiffs' claims largely track the FLSA. 3 Indeed, Chipotle conceded below that

state "executive/administrative exemption[s] . . . , unless specifically noted,

parallel the analysis set forth under the FLSA." Dkt. No. 1100, at 22. There are,

however, some minor differences. As Chipotle notes, whereas under federal law

the amount of time an employee spends performing an activity is merely "a

useful guide" to determining that employee's primary duty, see 29 C.F.R.

§ 541.700(b), Colorado and Washington have strict percentage limitations

governing how much time an employee can spend on non-exempt activities and

still properly be considered an exempt employee, see 7 Colo. Code Regs. § 1103-

1.5(b) (providing that overtime law only applies only if the employee spends "a

minimum of 50% of the workweek in duties directly related to supervision");

Wash. Admin. Code § 296-128-510(5) (providing that overtime law applies only if

3 See N.Y. Comp. Codes R. & Regs. Tit. 12, §§ 146-1.4, 146-1.6; N.Y. Lab. Law § 195
(New York); Mo. Rev. Stat. § 290.527.1 (Missouri); 820 Ill. Comp. Stat. § 105/4a (Illinois);
N.C. Gen. Stat. § 95-25.22(a1); 13 N.C. Admin. Code § 12.080 (North Carolina); see also
Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 n.5 (2d Cir. 2013).
17
the employee "does not devote as much as 40% . . . of his hours worked . . . to

activities which are not directly and closely related" to the performance of

managerial work). Thus, the exemption analysis under state law is largely the

same as the analysis under the FLSA, subject to these minor caveats.

II. Denial of Class Certification

Class plaintiffs argue that the district court, in concluding that they

failed to establish predominance and superiority, committed legal error and

relied on clearly erroneous facts. For the reasons that follow, we conclude that

the district court did not commit reversible error.

A. Standard of Review

We review a district court order denying class certification for abuse

of discretion as to the ultimate decision and as to each of the Rule 23

requirements. Myers, 624 F.3d at 547. We review legal conclusions de novo and

factual findings for clear error. Id. This standard means that the district court "'is

empowered to make a decision -- of its choosing -- that falls within a range of

permissible decisions,' and we will only find 'abuse' when the district court's

decision 'rests on an error of law or a clearly erroneous factual finding, or its

decision cannot be located within the range of permissible decisions.'" Id.

18
(alterations omitted) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d

Cir. 2001)).

B. Applicable Law

Plaintiffs seeking certification of a Rule 23(b)(3) damages class action

must first establish numerosity, commonality, typicality, and adequacy of

representation, and then predominance of common questions of law or fact and

the superiority of a class action over other procedures. Fed. R. Civ. P. 23(a),

(b)(3). The "predominance" requirement of Rule 23(b)(3) "tests whether

proposed classes are sufficiently cohesive to warrant adjudication by

representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The

requirement is satisfied "if resolution of some of the legal or factual questions

that qualify each class member's case as a genuine controversy can be achieved

through generalized proof, and if these particular issues are more substantial

than the issues subject only to individualized proof." Moore v. PaineWebber, Inc.,

306 F.3d 1247, 1252 (2d Cir. 2002); see also Myers, 624 F.3d at 547.

A court examining predominance must assess (1) "the elements of

the claims and defenses to be litigated," (2) "whether generalized evidence could

be offered to prove those elements on a class-wide basis or whether

19
individualized proof will be needed to establish each class member's entitlement

to relief," and (3) "whether the common issues can profitably be tried on a class[-]

wide basis, or whether they will be overwhelmed by individual issues." Johnson

v. Nextel Commc'ns Inc., 780 F.3d 128, 138 (2d Cir. 2015).

The question whether employees are entitled to overtime under the

FLSA is "a complex, disputed issue, and its resolution turns on exemption, which

in turn will require the district court to decide a number of subsidiary questions

involving whether plaintiffs fall within the Labor Department's criteria for

'employees employed in a bona fide executive [or administrative] capacity.'"

Myers, 624 F.3d at 548 (quoting 29 U.S.C. § 213(a)(1)). "Significantly, the

regulations make clear that these questions should be resolved by examining the

employees' actual job characteristics and duties." Id. "Economies of time, effort,

and expense in fully resolving each plaintiff's claim will only be served, and the

predominance requirement satisfied, if the plaintiffs can show that some [of the

subsidiary questions necessary to determining exemption] can be answered with

respect to the members of the class as a whole through generalized proof and

that those common issues are more substantial than individual ones." Id. at 549

(internal quotation marks and citations omitted).

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 C. Application

Class plaintiffs argue that the district court's conclusion that

predominance was not met was erroneous because the court (1) made clearly

erroneous factual findings regarding the distinctions among class members, (2)

rested its conclusion on an erroneous view of the law that common questions

cannot predominate if some workers perform managerial tasks that others do not

perform, and (3) failed to weigh the individualized evidence against the common

evidence. We conclude that the district court did not rest its decision on an error

of law or a clear error of fact. Nor did it abuse its discretion. Accordingly, we

need not address class plaintiffs' superiority arguments. See Myers, 624 F.3d at

548 (noting the "need only [to] address the 'predominance' requirement" because

the finding of a lack of predominance was not error).

The district court began its predominance analysis by

acknowledging that "Apprentices' range of managerial tasks such as employment

decisions, scheduling, inventory, performance evaluations" and "range of manual

labor tasks such as working the line, serving customers, prepping, grilling, and

running the register" were "similar." Scott, 2017 WL 1287512, at *4 (emphasis

added). Indeed, this finding, combined with Chipotle's uniform job description

21
and its uniform classification of Apprentices as exempt employees, formed the

basis of the district court's conclusion that class plaintiffs had established

commonality. See id. at *3. But the court went on to explain that although the

range of tasks were largely the same across class plaintiffs, the primary duty

performed by class plaintiffs -- the dispositive question of the exemption inquiry

-- was not adequately similar. Id. at *4.

The court analyzed the testimony of the named plaintiffs regarding

their primary duty and found that the testimony was "internally inconsistent and

distinguishable from one another." Id. at *4. For example, whereas named

plaintiffs Scott and Parker did not have any say in hiring and claimed no role in

employee development or discipline, named plaintiffs Higgs and Medina made

hiring and termination recommendations and trained employees. Id. at *5.

The court also analyzed the testimony of putative class members

regarding four key categories of the "primary duty" inquiry, "[n]otwithstanding

the internally inconsistent testimony among the named Plaintiffs." Id. at *6. It

concluded that the putative class members' testimony also "rang dissonantly

from the record." Id. As to personnel decisions, one of the tasks considered

managerial under Labor Department regulation, see 29 C.F.R. § 541.102, the

22
district court found that while "[m]any apprentices played a significant role in

personnel decisions," others "testified that they had no involvement" in such

decisions, Scott, 2017 WL 1287512, at *6. As to scheduling authority, also a task

considered to be managerial under Labor Department guidelines, see 29 C.F.R.

§ 541.102, the district court found that while "[s]ome Apprentices prepared and

disbursed schedules without . . . approval from higher management," others "did

not perform this managerial task, because they did not believe they had the

authority to do so," Scott, 2017 WL 1287512, at *6. The district court found similar

inconsistencies across the testimony of the putative class members with respect

to two other important consideration under the guidelines: employee

supervision and training, and the amount of time spent on managerial tasks. See

id. at *7-8.

On the basis of these factual determinations, the district court

concluded that despite the common questions of fact -- including Chipotle's

blanket classification of Apprentices, the outside consultant's analysis concerning

exemption, the uniform Apprentice job description, and Chipotle's expectation

that Apprentices perform the same responsibility -- "[t]he disparate accounts

from Apprentices prove[d] fatal to the predominance inquiry." Id. at *8. Thus,

23
the district court concluded that class plaintiffs failed to meet their burden of

proving predominance.

Class plaintiffs argue that this conclusion rested on clearly erroneous

factual findings. We are not persuaded. Although nominally an argument about

clearly erroneous facts, this assertion boils down to a disagreement with the

district court's ultimate conclusion. We can discern no clearly erroneous facts

relied upon in the district court's analysis; it based its legal conclusion on a fair

interpretation of the facts after thoroughly parsing the voluminous record in the

case. While reasonable minds could disagree, on the record before us we cannot

say that the district court's factual findings were clearly erroneous or that its

conclusion was outside the range of permissible decisions.

Class plaintiffs also argue, in cursory fashion, that the district court

committed legal error by (a) assuming that common questions cannot

predominate if some workers perform managerial tasks that others do not

perform and (b) failing to weigh the individualized evidence against the

common evidence. We disagree that the district court committed such errors. It

correctly cited the law of class certification and applied that law to the facts of the

case. It concluded that predominance was not met only after weighing the

24
individualized issues against the common ones and concluding that the

individualized issues proved "fatal" to the balancing. Scott, 2017 WL 1287512, at

*8. Like class plaintiffs' argument that the district court clearly erred in its

construction of the facts, these legal arguments are, in effect, an effort to couch

class plaintiffs' disagreement with the district court's reasoned decision as an

error of law. But, as discussed above, the district court's conclusion fell within

the range of permissible decisions committed to its discretion.

Accordingly, we affirm the district court's denial of class plaintiffs'

motion to certify the proposed class actions.

III. Collective Action Decertification

Collective plaintiffs principally argue that the district court

committed legal error by improperly analogizing the standard for maintaining a

collective action under the FLSA to Rule 23 procedure, and relying on that

improper analogy in concluding that named plaintiffs and opt-in plaintiffs are

not "similarly situated." For the reasons that follow, we agree.

A. Standard of Review

We have not ruled on the appropriate standard of review to be

applied to a district court's decertification of a conditionally certified collective

25
action. The parties agree, as do we, that "[l]ike the district court's certification

determination pursuant to Rule 23," we review its decision to decertify an FLSA

collective action for abuse of discretion. See Glatt v. Fox Searchlight Pictures, Inc.,

811 F.3d 528, 539 (2d Cir. 2015). Thus, "we will only find 'abuse' when the district

court's decision 'rests on an error of law or a clearly erroneous factual finding, or

its decision cannot be located within the range of permissible decisions.'" Myers,

624 F.3d at 547 (alterations omitted) (quoting Zervos, 252 F.3d at 169). We review

de novo the district court's selection and application of the legal standards that led

to its conclusion to decertify. Parker v. Time Warner Entm't Co., 331 F.3d 13, 18

(2d Cir. 2003) (discussing Rule 23 standard of review).

B. Applicable Law

The FLSA provides that an action to recoup unpaid overtime wages

may be maintained against any employer . . . 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 become such a party and such consent is filed
in the court in which such action is brought.

29 U.S.C. § 216(b) (emphasis added). The Supreme Court has characterized

§ 216(b) as a "joinder process." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75

n.1 (2013). Rather than providing for a mere procedural mechanism, as is the

26
case with Rule 23, § 216(b) establishes a "right . . . to bring an action by or on

behalf of any employee, and [a] right of any employee to become a party plaintiff

to any such action," so long as certain preconditions are met. 29 U.S.C. § 216(b)

(emphasis added); see also Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 173

(1989) (noting that Congress gave employees the "right" to proceed collectively)

One of the principal conditions to proceeding collectively under

§ 216(b) is that the named plaintiffs be "similarly situated" to the opt-in "party

plaintiff[s]." See 29 U.S.C. § 216(b). Procedurally, we have endorsed a two-step

process for certifying FLSA collective actions based on the "similarly situated"

requirement:

At step one, the district court permits a notice to be sent to
potential opt-in plaintiffs if the named plaintiffs make a
modest factual showing that they and others together were
victims of a common policy or plan that violated the law. At
step two, with the benefit of additional factual development,
the district court determines whether the collective action
may go forward by determining whether the opt-in plaintiffs
are in fact similarly situated to the named plaintiffs.

Glatt, 811 F.3d at 540 (citing Myers, 624 F.3d at 555). Substantively, however, we

have said little regarding what it means to be "similarly situated" and how

district courts should analyze whether named and party plaintiffs are so situated,

particularly at Step Two.

27
 1. The "Similarly Situated" Requirement

The FLSA does not define the term "similarly situated." The

Supreme Court, analyzing the same "similarly situated" standard of § 216(b) that

is incorporated into both the FLSA and the Age Discrimination in Employment

Act (the "ADEA"), has held that Congress's goal in granting employees the right

to proceed as a collective was to provide them "the advantage of lower

individual costs to vindicate rights by the pooling of resources." Hoffmann-La

Roche Inc., 493 U.S. at 170. This results in the "efficient resolution in one

proceeding of common issues of law and fact arising from the same alleged"

FLSA violation. See id.

This result -- the efficient resolution in one proceeding of common

issues of law and fact arising from the same alleged FLSA violation -- can only be

achieved to the extent that named plaintiffs and opt-in plaintiffs share one or

more issues of law or fact that are material to the disposition of their FLSA

claims. Thus, to be "similarly situated" means that named plaintiffs and opt-in

plaintiffs are alike with regard to some material aspect of their litigation. See

Campbell v. City of Los Angeles, 903 F.3d 1090, 1114 (9th Cir. 2018). That is, party

plaintiffs are similarly situated, and may proceed in a collective, to the extent

28
they share a similar issue of law or fact material to the disposition of their FLSA

claims. 4 It follows that if named plaintiffs and party plaintiffs share legal or

factual similarities material to the disposition of their claims, "dissimilarities in

other respects should not defeat collective treatment." Id. If the opt-in plaintiffs

are similar to the named plaintiffs in some respects material to the disposition of

their claims, collective treatment may be to that extent appropriate, as it may to

that extent facilitate the collective litigation of the party plaintiffs' claims. 5

This similarly situated standard is consistent with that endorsed by

our sister circuits as well as district courts within this circuit. See, e.g., Campbell,

903 F.3d at 1117 (holding that, at Step Two, "[p]arty plaintiffs are similarly

situated, and may proceed in a collective, to the extent they share a similar issue

of law or fact material to the disposition of their FLSA claims"); Halle v. W. Penn

4 In contending that we have "equat[ed] 'similarly situated' with 'any similarity,'"
Dissent at 2, the Dissent criticizes a standard that -- although helpful to the critique -- is
nowhere to be found in our text. As clearly set forth above, we do not hold that the
named plaintiffs and opt-in plaintiffs are "similarly situated" for purposes of a collective
action under 29 U.S.C. § 216(b) when they share "any similarity"; rather, we hold that
the standard is met when there is similarity with respect to "an issue of law or fact
material to the disposition of their FLSA claim." Contrary to the Dissent's assertions,
the standard established here is meaningfully circumscribed.
5 District courts are well equipped to manage cases in this way. For example, Rule
42 provides for the possibility of partial consolidation for trial, to the extent separate
actions involve common questions of law or fact. Fed. R. Civ. P. 42(a)(1).
29
Allegheny Health Sys. Inc., 842 F.3d 215, 226 (3d Cir. 2016) (noting that, at Step

Two, "[b]eing 'similarly situated' means that one is subjected to some common

employer practice that, if proved, would help demonstrate a violation of the

FLSA" (internal quotation marks omitted)); McGlone v. Contract Callers, Inc., 49 F.

Supp. 3d 364, 367 (S.D.N.Y. 2014) (noting that, at Step Two, named and opt-in

plaintiffs are similarly situated to the extent they "were common victims of a

FLSA violation pursuant to a systematically-applied company policy or practice

such that there exist common questions of law and fact that justify

representational litigation" (quoting Pefanis v. Westway Diner, Inc., No. 08-cv-

7813, 2010 WL 3564426, at *4 (S.D.N.Y. Sept. 7, 2010)); see also Newberg on Class

Actions § 23:39 (5th ed. 2017) (noting that under § 216(b), the plaintiffs must

demonstrate that they have all been "subjected to some common employer

practice that, if proved, would help demonstrate a violation of the FLSA"). 6

6 The Dissent goes to great lengths to distinguish these cases and argue that the
standard we set forth today is "newly minted." Dissent at 1. But providing clarity is not
making something new. The standard we adopt here is plainly compelled by the
statutory text and Supreme Court precedent and has been endorsed by courts outside of
this circuit along with lower courts within this Circuit. In selectively quoting language
from these opinions to argue that they nonetheless employ elements of the ad hoc test,
see Dissent at 4-5, the Dissent only further underscores the absence of a clear standard,
and the need for clear guidance from this Court.
30
 2. The "Ad Hoc" Approach

The majority of courts in this Circuit, including the district court

below, employ what has been termed an "ad hoc" approach to the similarly

situated inquiry at Step Two. 7 Under this flexible approach, courts consider the

"(1) disparate factual and employment settings of the individual plaintiffs; (2)

defenses available to defendants which appear to be individual to each plaintiff;

and (3) fairness and procedural considerations counseling for or against

collective action treatment." See, e.g., Buehlman v. Ide Pontiac, Inc., 345 F. Supp. 3d

305, 313 (W.D.N.Y. 2018). Thus, rather than considering the ways in which the

opt-in plaintiffs are similar in ways material to the disposition of their FLSA

claims, district courts employing the ad hoc factors consider the ways in which

the plaintiffs are factually disparate and the defenses are individualized.

We question whether the ad hoc approach is consistent with the

notion that party plaintiffs are similarly situated, and may proceed in a

collective, to the extent they share a similar issue of law or fact material to the

7 The ad hoc approach appears to have originated in Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987), in the context of an ADEA claim. There, the district court
considered collective plaintiffs' "disparate employment situations"; defendant's
"defenses and the applicability of the defenses to the instant facts"; and, more generally,
"considerations of fairness [and] efficiency" in concluding that collective plaintiffs were
not similarly situated at Step Two. Id. at 361-72.
31
disposition of their FLSA claims. First, it is abstract in a way that "risks losing

sight of the statute underlying it" by "tend[ing] to explain what the term

'similarly situated' does not mean [rather than] what it does" mean. Campbell, 903

F.3d at 1114. Second, its "open-ended inquiry into the procedural benefits of

collective action invites courts to import, through a back door, requirements with

no application to the FLSA," like Rule 23(a)'s requirements of adequacy and

typicality and Rule 23(b)(3) requirements of superiority and predominance. Id. at

1115. This flaw undermines what is supposed to be one of the chief advantages

of the ad hoc approach, that "it is not tied to the Rule 23 standards." Thiessen v.

Gen. Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); accord Morgan v.

Family Dollar Stores, Inc., 551 F.3d 1233, 1260 n.38 (11th Cir. 2008) (citing cases);

Scott, 2017 WL 1287512, at *8 (employing the ad hoc approach "[t]o avoid

conflating § 216(b) collective certification with Rule 23"). Indeed, as discussed

below, the district court's ad hoc analysis in this case suffered from this very

flaw. It imported through the back door "requirements with no application to

the FLSA" -- namely, that because there were a relatively large number of opt-in

plaintiffs, the "similarly situated" inquiry "mirrored" the requirements of Rule 23.

32
See infra Part III.C. We discuss this "sliding scale" analogy to Rule 23 in more

detail.

3. The "Sliding Scale" Analogy

Some district courts in this circuit, including the district court below,

have grafted onto the ad hoc approach additional considerations. One such

consideration is what collective plaintiffs describe as a "sliding scale" analogy,

because the district courts employing the analogy reason that "[t]he similarly

situated analysis can be viewed, in some respects, as a sliding scale." Gardner v.

W. Beef Props., Inc., No. 7-cv-2345, 2013 WL 1629299, at *4, 6 (E.D.N.Y. Mar. 25,

2013). The analogy is straightforward: "The more opt-ins there are in the class,

the more the analysis under § 216(b) will mirror the analysis under Rule 23." Id.

at *6. As a result, the court will import the more rigorous requirements of Rule

23 into the similarly situated inquiry in rough proportion to the number

plaintiffs who have chosen to opt-in. In so doing, the courts relying on this

analogy conflate the requirements for class certification under Rule 23 with the

requirements to proceed as a collective under § 216(b). 8

8 See, e.g., Mendez v. U.S. Nonwovens Corp., No. 12-5583, 2016 WL 1306551, at *4
(E.D.N.Y. Mar. 31, 2016) (noting that "[a]lthough the standard for establishing that the
collective members are similarly situated under the FLSA is less stringent than the Rule
23 commonality standard, courts in this district have noted that these two standards are
33
 This has led, in turn, to "courts assessing the predominance

requirement . . . almost always reach[ing] the same conclusion about whether

proceeding collectively is appropriate." Whilliam C. Jhaveri-Weeks & Austin

Webbert, Class Actions Under Rule 23 and Collective Actions Under the Fair Labor

Standards Act, 23 Geo. J. on Poverty L. & Pol'y 233, 264 (2016); see also Ruiz v.

CitiBank, N.A., 93 F. Supp. 3d 279, 298-99 (S.D.N.Y. 2015) ("[I]t is not mere

coincidence that courts facing parallel motions to decertify an FLSA collective

action under Section 216(b) and to certify a class action under Rule 23 have

tended to allow either both actions or neither to proceed on a collective basis.").

For the reasons discussed below, we hold that analogies to Rule 23,

including the sliding scale analogy, are inconsistent with the language of § 216(b)

and that the question of whether plaintiffs may proceed as a collective under the

FLSA is to be analyzed under the separate and independent requirements of

§ 216(b).

functionally similar"); Ruiz v. CitiBank, N.A., 93 F. Supp. 3d 279, 298-99 (S.D.N.Y. 2015)
(noting the "harmony of animating principles" underlying collective actions under
§ 216(b) and class actions proceeding under Rule 23); Indergit v. Rite Aid Corp., 293
F.R.D. 632, 651 (S.D.N.Y. 2013) (noting that although "conditional certification,
decertification, and Rule 23 class certification are subject to disparate legal standards,"
courts nonetheless "have recognized that the 'similarly situated' analysis for purposes of
FLSA certification can be viewed, in some respects, as a sliding scale").

34
 First and foremost, it is already well established that the FLSA's

"similarly situated" requirement is "independent of, and unrelated to" Rule 23's

requirements, Kern v. Siemens Corp., 393 F.3d 120, 128 (2d Cir. 2004), and that it is

"quite distinct" from "the much higher threshold of demonstrating that common

questions of law and fact will 'predominate' for Rule 23 purposes," Myers, 624

F.3d at 555-56. Nearly every circuit to consider the relationship between the

modern Rule 23 and § 216(b) has reached the same conclusion. See Campbell, 903

F.3d at 1111 (holding that § 216(b) analogies to Rule 23 "lack[] support in either

the FLSA or the Federal Rules of Civil Procedure"); Calderone v. Scott, 838 F.3d

1101, 1104 (11th Cir. 2016) (describing Rule 23 as "more demanding" than

§ 216(b)); O'Brien v. Ed Connelly Enters., Inc., 575 F.3d 567, 584-85 (6th Cir. 2009)

(describing Rule 23 as "a more stringent standard" than § 216(b)); Thiessen v. Gen.

Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) ("Congress clearly chose

not to have the Rule 23 standards apply to [collective actions], and instead

adopted the 'similarly situated' standard. To now interpret this 'similarly

situated' standard by simply incorporating the requirements of Rule 23 . . .

would effectively ignore Congress' directive."); LaChapelle v. Owens-Illinois, Inc.,

513 F.2d 286, 289 (5th Cir. 1975) (describing actions under § 216(b) and Rule 23 as

35
"mutually exclusive and irreconcilable"); see also Lusardi v. Lechner, 855 F.2d 1062,

1078 (3d Cir. 1988). But see Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772

(7th Cir. 2013) (noting that "the provisions of Rule 23 are intended to promote

efficiency . . . , and in that regard are as relevant to collective actions as to class

actions" because "there isn't a good reason to have different standards for the

certification of the two different types of action[s]").

This conclusion is supported by the language and structure of

§ 216(b) and the modern Rule 23, which bear little resemblance to each other.

Compare 29 U.S.C. § 216(b), with Fed. R. Civ. P. 23. Under § 216(b) of the FLSA,

employees have a right to maintain a collective action "for and in behalf of . . .

themselves and other employees similarly situated." Section 216(b) has nothing

comparable to Rule 23(b)(3)'s requirements of predominance or superiority. And

Rule 23's requirements of adequacy and typicality are intended to protect the due

process rights of absent class members, which is not a consideration in a

nonrepresentative action such as a collective action under § 216(b). See Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985); see also Campbell, 903 F.3d at

1112. Indeed, Congress amended § 216(b) in 1947 expressly to put an end to

representational litigation in the context of actions proceeding under §216(b), and

36
at the same time required that workers affirmatively opt-in by filing written

consent as a condition to proceeding as a collective. Compare Fair Labor

Standards Act of 1938, ch. 676, 52 Stat. 1060, 1069 (1938) (codified at 29 U.S.C.

§ 216(b)) (providing that employees proceeding under § 216(b) may "designate

an agent or representative to maintain such action for and in behalf of all

employees similarly situated"), with Portal to Portal Act of 1947, Pub. L. No. 80-

49, 61 Stat. 84, 87 (1947) (codified at 29 U.S.C. § 216(b) (1946 Supp. II)) (banning

representative actions and providing that "[n]o employee shall be a party

plaintiff to any such action unless he gives consent in writing to become such a

party and such consent is filed in the court in which such action is brought").

In 1966, Rule 23 was amended to resemble its modern form,

including for the first time Rule 23(a)'s requirements of commonality, typicality,

numerosity, and adequacy, and Rule 23(b)(3)'s requirements of predominance

and superiority. Fed. R. Civ. P. 23 (1966). Along with these revisions, the

drafters also omitted the opt-in requirement contained in the former "spurious"

class action device and replaced it with Rule 23(b)(3)'s opt-out requirement. Id.

The opt-out requirement of the modern Rule 23(b)(3) directly conflicts with the

express opt-in requirement of § 216(b). Accordingly, the drafters of the 1966

37
revisions explicitly noted that "the present provisions of [§ 216(b)] are not

intended to be affected." Fed. R. Civ. P. 23 advisory committee's notes to 1966

amendment; see also Knepper v. Rite Aid Corp., 675 F.3d 249, 257 (3d Cir. 2012).

Moreover, Rule 23 and § 216(b) serve fundamentally different

purposes. Rule 23 provides a general procedural mechanism for the resolution

of claims on a class-wide basis subject to the sound discretion of the district

court. See Fed. R. Civ. P. 23. Section 216(b), by contrast, is tailored specifically to

vindicating federal labor rights, and where the conditions of § 216(b) are met,

employees have a substantive "right" to proceed as a collective, a right that does

not exist under Rule 23. See 29 U.S.C. § 216(b); see also Hoffman-La Roche, 493 U.S.

at 173; Monroe v. FTS USA, LLC, 860 F.3d 389, 396–97 (6th Cir. 2017); O’Brien, 575

F.3d at 586.

We conclude by noting that "the FLSA not only imposes a lower bar

than Rule 23, it imposes a bar lower in some sense even than Rules 20 and 42,

which set forth the relatively loose requirements for permissive joinder and

consolidation at trial." Campbell, 903 F.3d at 1112. "Whereas [Federal Rules of

Civil Procedure] 20 and 42 allow district courts discretion in granting joinder or

consolidation, the FLSA, which declares a right to proceed collectively on

38
satisfaction of certain conditions, does not." Id.; see also O’Brien, 575 F.3d at 584-

85; Grayson, 79 F.3d at 1095-96; Lusardi, 855 F.2d at 1078. Furthermore, joinder

under Rule 20 requires, in addition to a common question of law or fact, that the

plaintiffs assert a right to relief arising from "the same transaction[ ] [or]

occurrence[]." Fed. R. Civ. P. 20(a)(1)(A). No such condition exists in the text of

the FLSA. See 29 U.S.C. § 216(b); see also Campbell, 903 F.3d at 1112.

For these reasons, we hold that the requirements for certifying a

class under Rule 23 are unrelated to and more stringent than the requirements

for "similarly situated" employees to proceed in a collective action under

§ 216(b). Accordingly, it is error for courts to equate the requirements of § 216(b)

with those of Rule 23 in assessing whether named plaintiffs are "similarly

situated" to opt-in plaintiffs under the FLSA.

C. Application

Collective plaintiffs principally argue that the district court

committed legal error in employing the "sliding scale" analogy to Rule 23 as it

improperly conflated § 216(b) with Rule 23 and that rule's more stringent

requirements. We agree.

39
 After citing to the two-step approach endorsed by this Court in

Myers, the district court proceeded to analyze whether collective plaintiffs were

similarly situated using the ad hoc factors. Scott, 2017 WL 1287512, at *8. In its

discussion of the ad hoc factors, the district court noted that their use is intended

"[t]o avoid conflating § 216(b) collective certification with Rule 23." Id.

Despite this disclaimer, however, in the very next sentence of the

opinion the district court did just that -- conflated § 216(b) with Rule 23 -- in

analyzing the first ad hoc factor. The district court began its discussion of

collective plaintiffs' disparate employment settings by noting that "[c]ourts have

recognized that the 'similarly situated' analysis for purposes of the FLSA

certification can be viewed, in some respects, as a sliding scale. In other words,

the more opt-ins there are in the class, the more the analysis under § 216(b) will

mirror the analysis under Rule 23." Id. (quoting Indergit, 293 FR.D. at 651). In

doing so, the district court imported through the back door of this ad hoc

approach the more stringent requirements of Rule 23, which have no application

to the FLSA.

The district court assumed that the size of the collective required a

heightened level of scrutiny mirroring Rule 23, which necessarily weighed in

40
favor of decertification -- particularly because the district court had concluded

earlier in the same opinion that class plaintiffs failed to establish predominance

under Rule 23. Indeed, after invoking the "sliding scale" analogy, the court

proceeded to reference its conclusion with respect to predominance that

"Apprentices had vastly different levels and amounts of authority in exercising

managerial tasks." Id. The district court then held that "disparities in job duties"

are "axiomatic considering that the 516 opt-in plaintiffs worked at 37 states across

Chipotle's nine geographic regions." Id. at *9. On this basis, the district court

decertified the collective action.

This was error. In effect, the district court held that collective

plaintiffs could not be similarly situated because class plaintiffs' common issues

did not predominate over individualized ones. It is simply not the case that the

more opt-ins there are in the class, the more the analysis under § 216(b) will

mirror the analysis under Rule 23. Supra Part III.B.3; see also O'Brien, 575 F.3d at

584-85 (holding that the district court erred when it "implicitly and improperly

applied a Rule 23-type analysis" to the FLSA); Morgan, 551 F.3d at 1265 (noting

that "the size of an FLSA collective action does not, on its own, compel the

41
conclusion that" it should not be maintained). Accordingly, we vacate the

district court's decertification of the collective action and remand.

On remand, the district court shall reconsider whether named

plaintiff and opt-in plaintiffs are "similarly situated" -- that is, whether they share

one or more similar questions of law or fact material to the disposition of their

FLSA claims. In doing so, the district court shall take into account its conclusion

with respect to commonality that "the question of whether Apprentices were

misclassified as exempt employees is common to all class members because it can

be answered with common proof." Scott, 2017 WL 1287512, at *3. This

conclusion was based on the district court's findings that (1) "Chipotle uniformly

classified all Apprentices as exempt," (2) "Chipotle has an expectation that the

core duties of the Apprentice is the same," and (3) "Chipotle uses a single job

description for all Apprentices." Id. (internal quotation marks omitted). These

facts, the court concluded, are "unquestionably probative of whether an

employee is properly classified as exempt. " Id. (internal quotation marks

omitted).

Though these findings were made with respect to the class plaintiffs,

and though courts may not import the requirements of Rule 23 into their

42
application of § 216(b) in assessing whether named plaintiffs and opt-in plaintiffs

are similarly situated under the FLSA, these findings are relevant to collective

plaintiffs' argument that they are similarly situated. Indeed, the "common

question" requirement of Rule 23(a) and the "similarly situated" requirement of

§ 216(b) serve comparable ends: to identify those shared issues that will

collectively advance the litigation of multiple claims in a joint proceeding. 9 And

as the district court correctly noted, "the differences in the actual job duties of

Apprentices are 'better suited to the predominance inquiry . . . together with an

analysis of the Rule 23(b)(3) factors.'" Chipotle, 2017 WL 1287512, at *3 (quoting

Jacob v. Duane Reade, Inc., 289 F.R.D. 408, 415 (S.D.N.Y. 2013)). Thus, as the

district court seems to acknowledge, these differences will not prove fatal to the

"similarly situated" analysis in the same way they proved fatal to the

9 In analyzing commonality under Rule 23(a), "[w]hat matters . . . is not the raising
of common 'questions' -- even in droves -- but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the litigation."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). In analyzing whether the
"similarly situated" requirement is met under § 216(b), what matters is the extent to
which named plaintiffs and opt-in plaintiffs share a similar issue of law or fact material
to the disposition of their FLSA claims. See infra Part III.B.1.
We caution that despite these similarities, courts should not overly rely on Dukes
and other class action case law in considering collective actions. See 7B Wright & Miller,
Fed. Prac. & Proc. Civ. § 1807 (observing that district courts have "uniformly" rejected
the argument that Dukes affects the FLSA's "similarly situated" requirement).
43
predominance inquiry in this case. If named plaintiffs and opt-in plaintiffs are

similar in some respects material to the disposition of their claims, collective

treatment may be to that extent appropriate, as it may to that extent facilitate the

collective litigation of collective plaintiffs' claims.

Because the district court conflated the standards for maintaining a

collective action under § 216(b) and a class action under Rule 23, we vacate the

decision of the district court and remand for further proceedings consistent with

this opinion.

CONCLUSION

Accordingly, we AFFIRM the district court's denial of class

certification as to class plaintiffs' claims, we VACATE the district court's

decertification of the collective action, and we REMAND for further proceedings

consistent with this opinion.

44
 Appendix

MARVINS GEORGES, FRANCISCO MAYORGA, KATHERINE FLANAGAN, LEAH
TURNER, JOSE RAFAEL LOPEZ, JUSTIN GRAZUNA, CHRIS HALLER, MICHAEL
CARVER, MICHAEL DMYTRYK, MARK DANNEMILLER, ASHLEY PAMPLIN,
ANTHONY BARTON, BRITTNEY MILLER, JAYSON GOLDSTEIN, AMANDA
MARKS, MICHAEL HAMILTON, JOSEPH F. DE MAYO, MATTHEW FLANDERS,
SARAH O. STRONG, STEPHEN PREISIGLLE, MARK A. WILSON, SHAWN T.
KURTZ, SHAKIRA HAWTHORNE, SUZANNE ANDERSON, EDMAR SOARES
SIMOES, JESUS HERNANDEZ, LISA JOHNSON, JOSE A. SANTIAGO, JOSHUA
COBAN, MARQUICE MARRERO, NELSON JOVEL AGUEDO DEJESUS, KELLI
WINICK, NATALIA BARKER, LUZ B. HENRIQUEZ, SHAWN GREEN, JOHNNY
GASPER, RUSSELL FLIDDY, EMILY GJERTSON, KEVIN CALLAHAN, RONALD E.
CONSELLO, JR., ALESIA WILLIAMS, STACY R. PENA, ALMA PULIDO, ANDREW J.
HIRSCH, THEODORE R. JACKSON, JR., DAWN AKASON, JAMES LEE PERKINS, III,
ZAIDA ORTIZ, MARIA VALENZVELA, NICOLE WATTS, DEREK A. GASSAWAY,
ERIC BUTTNER, ELIZABETH DIAZ, SARAH VALDERRAMA, MANDY L.
MCLOUGHLIN, JEREMY A. REESE, ALI SHEPPARD, MARIBEL M. MAHER,
STEFFRIN R. WINFREY, BRIAN D. ROGERS, VERONICA WELLS, ROBERT STEDEM,
JAVIER VALERIO, DANIELLE ROURKE, COREY PAULEY, CHRISTINE M. SVOREC,
HEATHER FANSHER, MICHAEL T. LEACH, ROSALIE MERRILL, (MALERONI),
BIVIANA ESPINOZA, ANGELICA ORTEGA, DUSTIN SCHREIBER, SPENCER
PARKER, SARA MURRAY, SCOTT RIEGER, EDWARD WRIGHT, GENE KAY,
RANDY JAMES DEAN, KEVIN ZARLEY, COREY TURNBULL, IVAN OLIVARES,
JAVIER VILLEGAS, SANDRA K. STEWART, LUZ MARTINEZ ACOSTA, KERSTINA
CAGGIANO, EDWARD TRIPLETT, CANDICE VANCAMP, LEONARDO
CERQUEIRA, BRANDON KELLER, BRANDON W. DORAN, CARLOS E. FLOUS
AURAYA, GLENN SHANK, CHAD KINSWORTHY, BERNARDU ESCOBAR PEREZ,
JAIME SAONA, JASON GILBERT, BRANDON WOMACK, RACHAEL CASCIANO,
RUSSELL BEHRMAN, PATRICIA ANN MOODY, ANDREW KAIS, BRATSSON E.
PINTO, SERGIO DANICO JUAREZ, RICARDO GARCIA, IAH MAROLS, SHANE
BARTON, JOSE PEREZ, BENJAMIN D. HOWARD, ADAM SHERRIS, ROBERTA
FACTOR, JONATHAN MARVIN, RACHEL SPALTH, MATT ROMMEL, DENISE
TATOM, EDWARD BOBB, JHONSON MORILLO, NATHANIEL J. CAMACHO,
CRYSTAL BERRY, SOCORRO JIMENEZ, DAVID EICH, MARIA MURZADO, ROBERT
FARMER, KRISTY BOWEN, KRISTIN LOMBARDI, TANNER L. RENNINGER,
MARICELA VENTURA, TARA WOOD, LAURA K. ORTEGA PEREZ, JASON LEIB,
MARVEZ ALEGRIA, CLARIBEL VEGA, REGINALD DOVE, JR., CHRISTOPHER
BASSFORD, JONATHAN STREETMAN, MARIA A. ARGUELLES, DAVID ORDONEZ,

45
MEAGAN U. CROWE, ALBERTO MENDOZA CHAVEZ, JOSH VENVERLON,
STEVEN H. STOWE, ERIC RIOS-FERMAN, MARC LINAMAN, ANA M. JIMENEZ,
JESSICA VILLEGAS, JAMES TOWNSEND, JACOB DUNCAN, ALEX D-B POON,
DANIEL BARBER, KELLIE SCHOENEMAN, ERIN DURKIN, GUILLERMO
MARTINEZ, JR., DEWAYNE GARDNER, JENINE MEISNER, LAURA KNIGHT,
JOSHUA DAMERON, JR., ROSS ARCE, SHAKIRA FREEMAN, CAMNLE BURNEVIK,
VANESSA ACEVEDO, BRANDON GILLISSIE, KEVIN STECKE, ANGELA WICKEIF,
SUSAN C. STRUNK, CHRISTIAN ARMENTA, MATHEW KREUZER, LENA M.
FAMULANO, DONNELL HARRIS, NICOLE FAULKNER, CARLOS FERNANDEZ,
BRIAN ALLEN MORA, MATTHEW MCGOWAN, VLADIMIR S. GARRIDO
BIAGETTI, BRITTANY DOWELL, TONY HERNANDEZ, III, STEPHEN W. ROBERTS,
HANNAH E. VOYTEN, STACY M. JOHNSON, JOSHUA LEONOR, RACHAEL JACK,
ROBERT C. SHOUP, SHARA L. MATLOCK, SHANTELLE OLIVER, MIGUEL
MARTINEZ, AMY TULLIS, ANDREW HETTINGER, MEGAN MACINTYRE, IAN
SAMPSON, DENIENE GOREY, VANESSA GONZALEZ, ARTHUR BAKER,
CHARLOTTE R. MAXWELL, AARON HORNER, ANNA DILLON, PAUL BISSETT,
KAYLA NEWSOM, AMANDA FISHER, ALEXANDER DANIELS, GAGE BENSON,
CORY TSEV, IVAN RUIZ, RUDY NUNEZ, SHADD MELCHIORRE, OMAR
GUTIERREZ, ORIDIO CASTRO-DELCID, RUDY VILCHIS, CORDELL GODFREY,
HEATHER RICHARDS, JULISSA DOUVILLE, CHELSEA E. FIELDS, RONALDO
ALVAREZ, JACKIE LOUDERMILK, CLAUDIA E. TAYLOR, DEREK IAN
CANTWELL, LETICIA QUINTERO, JERA L. PENNINGTON, MATTHEW T. DONIS,
RYAN M. CASSLER, ANGELA GESARIO, SCOTT TAFT, REYNA C. CRUZ, DARRELL
WARD, DANIEL ARGO, MEGAN A. MURRAY, MATTHEW SAUERS, ELIZABETH
HOPKINS, BARBOA CAESAR, SHELLY M. STINSON, JUSTIN BREEDEN, REYNA M.
RYES LARIOS, JENNIFER CURTIS, JESSA ANDERSON, JESSE WOOTEN, GABRIEL
O. GURALIEROS, SCOTT MEISTER, FRENDIRA GOMEZ, DANIEL NEFF, DANETTE
RODRIGUEZ, JOHNNY MALDONADO, ADAM DIREISDORF, JESSICA L.
KACZMAREK, MICHAEL BEER, JOEL MAYO, MEGHAN L. CLOSE, MELISSA
MARTINEZ, GIVONTE HUEY, ADAM DAVIS, DUSTTIN NICHOLSON, ROBERT
MCCANN, GABRIEL WHITE, JONATHAN BOUYER, MICHAEL S. MOSCHINI,
JULIE ANNE CORTIZO, AUBRY BAIRD, BRITTANY SWA, VERONICA MENCHEN,
NETANEL GUTT, CARMEN M. DIAZ, ROBERTO GOUT, BEN CAMARONE GARR,
MEAGHAN MCCLUGAIA, GROCAIELO HERNANDEZ, ROBERTA OKUADJO,
KARISMARIE NIEDZWIECKI, SCOTT RAMR, EMILY EDGAR, LAURA IBARRA,
ERIC LEWIS, JOSE A. SANCHEZ-PENA, DEREK CASE, KARLI KOPIETZ, CARLOS
ROMERO, DARRELL ANDERSON, KRISTIAN PI, MELISSA ALVARADO, ROBERT O.
SMITH, PAUL A. ANDORFER, ELIZABETH H. GOMULA, JEFFREY A. MOBLEY,
JOSHUA MIDDENDORF, KAYLA M. DAVIS, CHRIS PERRY, ANDRES QUINONES,
ROWANA ANTHONY, MARIA REYES, ZACHARY SANFORD, SANDRA CHURCH,
46
TONY LACHEL, MILTON CHAMBERLAIN, III, ANDREW MCIALWAIN, SARAH
ELIZABETH WILLS, JASON LEVERENZ, ERIKA MAH, ARGURO RAMON, SCOTT
MUMFORD, FERNANDO BARRETO, DAVID R. PERRUCHON, URI ANTONIO
AGUILAR, JOSEPH DEIVECCHIO, MARK B. PAETZ, SHENISE WILLIAMS, CARLA
M. CARRABBIA, STEPHANIE PORTILLO, JAMES BITTNER, SORAYA KANOU,
MARTHA RODRIGUEZ, KEVIN CHAN, RICHMOND C. FRISON, ANDRIA LARSON,
VICTORIA GUTIERREZ, RUSSELL A. CARATANUTO, FRANKO MERINO, EDITH
SIGARAN, MARINA TAYAMA, RACHEL NORRIS, CIARA L. HURU, TRACIE
SHALTUCK, HOLLY KENNELL, MARK GIORDANO, MICHAEL PRINGLE, JESSICA
GARCIA, VERENICE GALVAIN, MAYLIN LEE SCHOFIELD, GENIFER GELMAN,
RAMON A. RAMOS, STEVEN HALSTEAD, STEVEN MOO, NICHOLE R. HUNDLEY,
DARLENE NICHOLS, JOHN THOMAS GONZALEZ, COLE HOLMAN,
JOHNATHAN MORRIS, DANIEL FERRIE, KRISTEN KING, AMANDA PASTORE,
MIRIAM BAUTISTA, DONNA LEE JOHNSON, JOANNY ALVAREZ, KYLE
YANDENBURGH, ALEJANDRO LOPEZ, KELSEY WRIGHT, ZAKARIA FESSIKH,
MATTHEW ROWEDDA, JONATHON WOLAK, LUIS A. VEGA, SAIAS MARTINEZ
MONDRAGON, MARCOS MCADOO, REBECCA DAMPHOUSSE PLANT, MONICA
GARCIA, DANIELLE ENGLE, ERIC LUND, JOSH PAETZ, JIMMY TUCKER,
AMANDA HENRY, JESSICA DAVIES, ROBYN YEAGER, KALINDA FLORES, JOSE R.
ORTEGA, JOHN M. FEAR, JAMIE LAMB, JUVENAL VARGAS, OSCAR PEREIRA,
KYLE FENNESSEY, CHELSEY NICASTRO, CARLOS ALEXI AVALOS GRANADOS,
HEATHER DORNHECKER, PATRICE DERFLINGER, MARTA SERRATO, DENNIS
MIGUEL ORDONEZ-RAMOS, RAMON ALONSO, JOSIE HALL, LYDIA PIEPER,
RAUL CRUZ, MICHAEL J. WOOD, ERICK MEDINA, CARRIE SWANSON,
(CLEMETSON), KEISLER BAQUIRAN, BRITTNEY ALSTON, GABRIEL VASQUEZ,
NICOLE DAVIS, KELLY PALECEK, DANIEL HOWLING, LUIS VIDAL, KRISTIN
VATES, ALEXANDRA NEAL, RICHARD BUTCHER, ISELA HERNANDEZ, NORMA
P. MORALES, STEPHANI TWIDELL, JOSE RAUL BARRIOS, DARRYL MILLEDGE,
SCOTT M. COSTELLO, KENNETH J. STACY, NICHOLAS TELLEZ, SEAN SULLIVAN,
JEFF HABLE, KRYSTAL BEINING, LORENA A. CHAPARRO, ARAN CASTILLO,
JOHN J. HOLLAND, MARK A. GAJDA, MARISOL I. TELLEZ, DUSTIN ROBERTS,
STEVEN HASTINGS, JEFFREY E. RUPARD, JOANNA WILLIAMS, RYAN
CHRISTOPHER FURST, ABIGAIL VEGA, WANDA A. HARY, MICHAEL PRICE,
MARISSA COOLEY, CRUZ FLORES, MATTHEW WERNER, GREGORIO CASTILLO,
RAMEL CRESPO, ANTHONY ESQUIVEL, OCTAVIO MORA, JACOB N. WILDE,
CHRISTIAN ROCHA, JASON A. SIMON, NICOLE RECCO, JOHN
JOYCESUMMERFELD, NATHAN FENWICK, MICHAEL BERLAD, JORGE LOPEZ,
EUA ANGEL, MARISOL RAMIREZ, KELLY NITZSCHE, EMILY A. CARR, APRIL
LEAH MILLER, (DELSOL), KARL HASENDEHRL, ISABEL PRITCHETT, RYAN
MCINTYRE, ANHARA ROLON YANEZ, ADAM CHRISTIAN, EUSTOLIA MEDINA,
47
PATRICIA VILLANUEVA, MERIDETH ELBRECHT, JOHN UNDERWOOD,
OLGUIMAR RODRIGUEZ-RAMOS, ROSARIO BETANCOURT, KRISTINA R.
RODRIGUEZ, MELVIN ALVAREZ-GREGORY, KATHRYN DIAZ, MOISES RUIDIAS,
NATHANIEL DAVID SCHNEPPLE, DANIEL DALTON, ROBERTO GOMEZ,
DIESHON CLARK, JONATHAN POPCHOKE, MATTHEW TORNO, NICHOLAS
DWYER, WILLIAM AVILES, AILIN REYES, ABRAHAM MORAGA, JESUS
ORTEGON, CHRISTOPHER AARON ARMSTRONG, LUIS VICENCIO, CHUN W. YU,
ALMA DELIA CALDERON VELAZQUEZ, APPOLONIA PEREZ, STEVEN ROPER,
ROBERT STRAUSBAUGH, LOVANA TAYLOR, ALEXIS L. MARTINEZ, MARTHA
LORENZO MORALES, JOSE HERNANDEZ-MIRANDA, LAUREN KELSCH, SEAVEN
CAYSON, REGGIE COVERSON, STEVEN CRAMP, SARAH L. MEYER-ALLEN,
CASSANDRA MALAK, WILLIAM COLLINS, NORMA ORTEGA, KYLE RICHUN,
EMILEE CALHOUN, MIKE STELZER, MORTIMER CADOGUN, RAUL RUIZ, JR.,
RAUL LOVATO, LUIS ALONSO ORTEGON, CHRISTINA HOLLINGSHEAD, ADAN
CASTILLO RAMOS, ERIC LOW, VANIA VASQUEZ, JONATHAN R. NICHOL, JOE
ROSTYNE, JANNELLE KIRKWOOD, KOFI BOSSMAN, NATANAEL DIAZ
PORTILLO, TARA M. GENTRY, CHRISTINA G. WEST, GERALD V. LABENSKY, JR.,
FREDDY A. DIAZ VEGA, SARA GARNER, MICHAEL RINGLE, FELIPE NAVARRO,
PARITHAN KUNGSUVVAN, JOSEPH JACOBS, ALEXANDRIA RAMAS, SARAH
NOAH, JONATHAN M. HAYS, ROBERT J. GALLAGHER, RENEE POPE-MACEDO,
KATHRYN ARMSTRONG, NICOLE PERKINS, MICHELLE HERRERA, LUIS TORRES,
II, AMBER L. FORTSON, BRANDON MORGAN, VIDALIA FLORES TRUJILLO,
SARAH PAPE, JOEL GOSNELL, VIVIANA HENRIQUEZ, AMIE MYERS, DAVID
NOEL, ANDREW PAOLINETTI, ADELINA SANCHEZ, WAYNE CHARLES FRANZ,
WILLIAM R. DOWNARD, MILAGROS M. DE LA FUENTE, BRIDGETT THOMAS,
JOSE JACOBS, WILLIAM I. LAKE, CRYSTAL TORRES, ERNEST M. DIAZ, SHALETT
DOXIE, SHALETT DOVIE, BRIAN P. HOWELL, JOSSEP DIAZ, JASON KERN,
MADDIE BRENNAN, JOE DETTLO, MELISSA SOSA, EVA ANGEL, LOURDES P.
FLORES, ANA DELGODILLA, TIARA HUGHES, ROXANA MORALES, FREDDIE
AHUMADA, ANTHONY MANCO, LAURA YBARRA, CARLOS FRAGUADA, PETER
C. DELGADO, BRITTANY LINK, JOSE VILLAFRANCO, CONSUELO V. PEREZ, JOSE
RAMIREZ, ANA PIMENTEL, BONNIE BUSS, KEVIN SCOTT, GRACIELA ESCOBAR,
MORTIMER CADOGAN, THOMAS BLAKE DODSON, WILLIAM R. MEYER, RYAN
TRACY, BRIAN SHORT, RAFAEL ESCALANTE, JOSEPH ROSTYN, ANA LUISA
VIDAL, JOHN E. HEJDUK, THOMAS WERNER, ASHLEY P. GREEN, MICHAEL
IERINA, KATE KUZMESKUS, ERNESTO BALDELAMAR, CARMELO MENDEZ, JR.,
OMAR CASILLAS, JACOB MAJOR, KAI CLARK, RODIS NAJARRO, MARIA ROSA,
MARK A. TURNER, TRISTA P. TAGUE, YVETTE DODGE, COREY YEAUGER, HANS
RICHTER, JOSHUA GOTTLOB, ALYSSA ASHLEY CHISHOLM, BRYCE HANDY,

48
GABRIEL CARRION VELLEJO, ALFREDO CUATE BRIONES, ANA MARIA
HEREDIA, ANA LAURA SANCHEZ INFANTE, JAIME MANZO, JASON LIS

49
SULLIVAN, Circuit Judge, concurring in part and dissenting in part:

While I concur in Parts I and II of the majority’s decision, I respectfully

dissent with respect to Part III. Specifically, I disagree with the majority regarding

the proper standard to be applied in determining whether plaintiffs are “similarly

situated” for the purposes of a collective action under 29 U.S.C § 216(b).

Furthermore, I believe that the district court’s decertification of the collective

action was not an abuse of discretion when judged against the correct standard.

Accordingly, I would affirm the district court’s ruling in its entirety.

I.

First, the majority’s newly minted definition of “similarly situated” – i.e.,

that “named plaintiffs and opt-in plaintiffs share one or more issues of law or fact

that are material to the disposition of their FLSA claims” regardless of any

“dissimilarities in other respects,” Maj. Op. at 29 (emphasis added) – has no basis

in the text of the statute. As the majority concedes, the FLSA nowhere defines the

term “similarly situated,” leaving the words to be interpreted in accordance with

their plain meaning and the reasoned judgment of district judges tasked with

assessing the universe of facts available in a given case. Common sense would

suggest that “similarly situated” often requires more than the sharing of a single
fact or legal issue, and that the existence of multiple dissimilarities would be

highly relevant to the inquiry. The majority’s definition – equating “similarly

situated” with “any similarity” – lowers the bar for collective actions, and reduces

district courts to mere bystanders rather than gatekeepers.

Unlike the majority, I do not view the differences between Rule 23 and

§ 216(b) as supporting the “any similarity” standard. To be sure, the standards

under Rule 23 and § 216(b) are wholly “independent of, and unrelated to” one

another, Kern v. Siemens Corp., 393 F.3d 120, 128 (2d Cir. 2004) (quoting Grayson v.

K Mart Corp., 79 F.3d 1086, 1096 n.12 (11th Cir. 1996)), and the requirements of

§ 216(b) are less stringent than those of Rule 23, see Myers v. Hertz Corp., 624 F.3d

537, 555–56 (2d Cir. 2010), in part because courts are not faced with the same due

process concerns regarding absent class members that they face in a class action

under Rule 23, see Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 263 n.17 (S.D.N.Y. 1997)

(Sotomayor, J.) (observing that Rule 23 is designed in part to protect the due

process rights of absent class members, a concern that is not present in the FLSA

context). Nevertheless, I am not convinced that Rule 23 and § 216(b) serve

“fundamentally different purposes,” Maj. Op. at 38, or that their differences are so

substantial as to make the “similarly situated” requirement of § 216(b) a mere

2
formality. “Section 216(b) of the FLSA and Rule 23(b)(3) are animated by similar

concerns about the efficient resolution of common claims.” Calderone v. Scott, 838

F.3d 1101, 1103 (11th Cir. 2016). While plaintiffs must make an additional showing

to be certified as a class under Rule 23, neither plaintiffs nor the court would be

significantly benefited if plaintiffs were allowed to proceed collectively despite

having drastically different material facts or different legal claims simply because

they share a single common fact or legal issue. See Hoffmann-La Roche, Inc. v.

Sperling, 493 U.S. 165, 170 (1989) (“A collective action allows . . . plaintiffs the

advantage of lower individual costs to vindicate rights by the pooling of resources.

The judicial system benefits by efficient resolution in one proceeding of common

issues of law and fact arising from the same alleged discriminatory activity.” (emphasis

added)); see also Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 538 (3d Cir. 2012)

(explaining that “simply sharing a common status, like being an illegal

immigrant,” and being subject to a “common scheme” does not amount to being

“similarly situated” if “[l]iability and damages still need to be individually

proven”). Although the majority is undoubtedly correct that “where the

conditions of § 216(b) are met, employees have a substantive ‘right’ to proceed as

a collective,” Maj. Op. at 38, plaintiffs must, as a threshold matter, actually satisfy

3
those conditions – including that they are “similarly situated.” Where they cannot,

employees will nonetheless continue to have an incentive to bring FLSA suits

individually, particularly since prevailing plaintiffs will still be entitled to

attorneys’ fees under the statute even if the damages award is modest. See Fisher

v. SD Prot. Inc., 948 F.3d 593, 604 (2d Cir. 2020) (emphasizing that there is no

requirement that attorneys’ fees be proportional to the settlement amount, as

“[t]he whole purpose of fee-shifting statutes is to generate attorneys’ fees that are

disproportionate to the plaintiff's recovery” (emphasis omitted) (quoting Millea v.

Metro-N. R. Co., 658 F.3d 154, 169 (2d Cir. 2011)).

I am equally unpersuaded by the majority’s critique of the ad hoc test

employed by the district court and many other courts around the country. Maj.

Op. at 31. Most of the cases cited by the majority are readily distinguishable, and

do in fact assess some of the factors identified under the so-called ad hoc test. See

Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 226 (3d Cir. 2016)

(emphasizing that courts should consider “all relevant factors . . . on a case-by-case

basis,” including “the factual and employment settings of . . . plaintiffs, the

different defenses . . . , the degree of fairness and procedural impact of certifying

the action . . . , and whether plaintiffs have made the appropriate filings with the

4
EEOC”); McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 367 (S.D.N.Y. 2014)

(looking not to a single question of law or fact but rather “common questions of

law and fact,” and specifically noting that courts typically consider the ad hoc

factors). The majority leans most heavily upon the Ninth Circuit’s decision in

Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018), which contains broad

language that arguably supports the majority’s expansive “similarly situated”

requirement. But while the Ninth Circuit disapproved of the ad hoc approach “as

it is typically articulated,” even it clarified that it did not intend to “preclude the

district court[] from employing . . . a version of the ad hoc test modified so as to

account for the flaws” it had identified. Id. at 1117, 1117 n.21.

To me, it seems obvious that an assessment of whether plaintiffs are

“similarly situated” requires the application of an ad hoc test that leaves district

courts free to consider the myriad factors – including both similarities and

dissimilarities – at play in a given case. See Zavala, 691 F.3d at 537–38 (finding that

the plaintiffs had failed to satisfy the “similarly situated standard” because “[t]he

similarities among the proposed plaintiffs are too few, and the differences among

the proposed plaintiffs are too many” such that there would be “minimal utility in

streamlining resolution of the claims”). Although the requirements under Rule 23

5
and § 216(b) are different, we have in fact recognized that the predominance

inquiry under Rule 23 and the “similarly situated” standard under § 216(b) are

“admittedly similar.” See Myers, 624 F.3d at 556. A district court should thus

consider similarities such as “whether the plaintiffs are employed in the same

corporate department, division, and location; whether they advance similar

claims; whether they seek substantially the same form of relief; and whether they

have similar salaries and circumstances of employment.” Karlo v. Pittsburgh Glass

Works, LLC, 849 F.3d 61, 85 (3d Cir. 2017) (emphases omitted) (quoting Zavala, 691

F.3d at 536–37). It should then weigh these against any dissimilarities, such as the

“disparate factual and employment settings of the individual plaintiffs” and

“defenses available to defendants which appear to be individual to each plaintiff.”

Scott v. Chipotle Mexican Grill, Inc., No. 12-cv-8333 (ALC) (SN), 2017 WL 1287512,

at *8 (S.D.N.Y. Mar. 29, 2017) (quoting Hernandez v. Fresh Diet, Inc., No. 12-cv-4339

(ALC) (JLC), 2014 WL 5039431, at *3 (S.D.N.Y. Sept. 29, 2014)); see also Zavala, 691

F.3d at 536–37 (“Plaintiffs may also be found dissimilar based on the existence of

individualized defenses.”). In weighing these factors, a court should consider

“fairness and procedural considerations counseling for or against collective action

treatment.” Scott, 2017 WL 1287512, at *8 (quoting Hernandez, 2014 WL 5039431, at

6
*3. In my view, this standard more appropriately accounts for the “flaws”

identified by the court in Campbell while still promoting efficient and just

resolution of claims.

I am thus less troubled than the majority that “courts facing parallel motions

to decertify an FLSA collective action under § 216(b) and to certify a class action

under Rule 23 have tended to allow either both actions or neither to proceed on a

collective basis.” Maj. Op. at 34 (quoting Ruiz v. CitiBank, N.A., 93 F. Supp. 3d 279,

298–99 (S.D.N.Y. 2015)). While the two provisions are surely distinct, such an

outcome would seem to be a natural result of two statutes that allow for class

treatment based on some showing of similarity between plaintiffs. In sum, rather

than being forced to certify a collective if plaintiffs share a single common issue,

the district court, with the benefit of having reviewed volumes of record evidence

after years of discovery, should be able to weigh the similarities and dissimilarities

to determine if plaintiffs are “similarly situated” such that the collective action

mechanism is the appropriate vehicle for the claims at issue.

II.

Having defined what I view as the appropriate standard, I also depart from

the majority’s application of the law to the facts here. While one can quibble with

7
the propriety of the district court’s reference to the “sliding scale” standard, it

seems to me that the district court’s ultimate conclusion in this case was wholly

justified. See Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002)

(upholding the district court’s decision where it misstated the standard but

properly analyzed the claims). The district court cited the ad hoc factors “[t]o

avoid conflating § 216(b) collective certification with Rule 23,” and I see no

evidence that its analysis was in fact driven by the more stringent requirements of

Rule 23. Scott, 2017 WL 1287512, at *8. Instead, the district court concluded that

despite the possibility that one could identify a common issue among Plaintiffs,

the similarities were superficial. Its decision was supported by factual findings,

and to my mind at least, was not an abuse of discretion.

For all of these reasons, I would affirm the district court’s ruling in all

respects. I therefore dissent from Part III of the majority’s opinion.

8