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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

CHRISTOPHER ROBERTS, CAITLIN

THROCKMORTON, BRANDY MOORE, Case No. 8:23-cv-02447
CARTER HUBBS, and JESSICA SCHAFER
individually on behalf of themselves, and all COLLECTIVE ACTION
others similarly situated,
Judge William F. Jung
Plaintiffs,
-against- Magistrate Judge Christopher P. Tuite

PUBLIX SUPER MARKETS, INC.,

Defendant.

FIRST AMENDED FAIR LABOR STANDARDS ACT

COLLECTIVE ACTION COMPLAINT

Plaintiffs Christopher Roberts, Caitlin Throckmorton, Brandy Moore, Carter Hubbs, and

Jessica Schafer along with any other similarly situated employees who have joined or may join

this action (“Plaintiffs”), by their attorneys, Shavitz Law Group, P.A. and Morgan and Morgan,

P.A., upon personal knowledge as to themselves and upon information and belief as to other

matters, alleges as follows:

INTRODUCTION

1. Plaintiffs brings this lawsuit as a collective action pursuant to the Fair Labor

Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (“FLSA”), on behalf of themselves

and all other persons similarly situated who suffered damages as a result of Defendant’s violations

of the FLSA.

2. As more fully described below, during the relevant time periods, Defendant

willfully violated the FLSA by failing to pay its non-exempt hourly Assistant Department

Managers and Department Managers who are similarly paid and perform similar duties
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(hereinafter referred together as “Non-exempt Hourly Managers”), including Plaintiffs and all

other similarly situated employees, for all of their overtime hours worked based upon its unlawful

policies and practices.

3. These Non-exempt Hourly Managers, including Plaintiffs here, worked in various

departments for Publix, including but not limited to the Bakery, Deli, Meat, Produce, Customer

Service, Seafood, Floral or Grocery departments.

4. While Defendant required Non-exempt Hourly Managers to work overtime hours,

it did not pay them for all hours worked including but not limited to time spent working inside

Publix stores performing pre- and post-shift work off-the-clock required by Publix; time spent

working during unpaid meal breaks; and time spent outside of Publix stores doing pick-ups or

deliveries, communicating with supervisors and co-workers, and other directives, off-the-clock.

5. Accordingly, Defendant failed to record or compensate Plaintiffs and Non-exempt

Hourly Managers for all of their hours worked in violation of the FLSA.

THE PARTIES

Plaintiffs

6. Plaintiff Christopher Roberts (“Roberts”) is a citizen and resident of Calhoun,

Tennessee.

7. Plaintiff Roberts worked for Defendant as a non-exempt, hourly-paid Assistant

Department Manager from approximately November 2019 to November 2021 at Defendant’s

stores in Cleveland, Tennessee and Chattanooga, Tennessee.

8. Plaintiff Caitlin Throckmorton (“Throckmorton”) is a citizen and resident of

Douglasville, Georgia.

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9. Plaintiff Throckmorton worked for Defendant as a non-exempt, hourly-paid

Assistant Department Manager from approximately March 2022 to May 2023 at several of

Defendant’s stores in the greater Atlanta area in Georgia.

10. Plaintiff Brandy Moore (“Moore”) is a citizen and resident of Weeki Wachee,

Florida.

11. Plaintiff Moore worked for Defendant as a non-exempt, hourly-paid Assistant

Department Manager from approximately September 2018 to approximately October 2021 at

Defendant’s store in Spring Hill, Florida.

12. Plaintiff Carter Hubbs (“Hubbs”) is a citizen and resident of Palmetto, Florida.

13. Plaintiff Hubbs worked for Defendant as a non-exempt, hourly-paid Assistant

Department Manager from approximately March 2016 to approximately mid-2021 and as a non-

exempt, hourly paid Department Manager from approximately mid-2021 to approximately July

2022 at Defendant’s stores in Bradenton, Florida.

14. Plaintiff Jessica Schafer (“Schafer”) is a citizen and resident of Cumming, Georgia.

15. Plaintiff Schafer worked for Defendant as a non-exempt, hourly-paid Department

Manager since 2005 to the present at Defendant’s stores in the Atlanta, Georgia area, including

Duluth, Johns Creek, Alpharetta, Cumming and Canton.

16. At all times relevant, each Plaintiff was an “employee” within the meaning of

Section 3(e) of the FLSA, 29 U.S.C. § 203(e).

17. Plaintiffs’ written consent to join forms are filed at ECF Docs. 1-1; or are being

filed contemporaneously with this Amended Complaint.

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Defendant

18. Publix Super Markets, Inc. (“Defendant” or “Publix”) is a Florida corporation with

its principal place of business in Lakeland, Florida.

19. Defendant operates more than 1,300 supermarkets in the United States including in

Florida, Georgia, Alabama, South Carolina, Tennessee, North Carolina and Virginia.

20. At all times relevant, Publix was and still is a covered “employer” within the

meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).

21. Publix employed and/or jointly employed Plaintiffs and similarly situated

employees within the meaning of the FLSA.

22. Defendant has substantial control over Plaintiffs’ working conditions and the

unlawful policies and practices alleged herein.

23. Defendant directly or indirectly acted in the interest of an employer towards

Plaintiffs and other similarly situated employees at all material times, including without limitation

directly or indirectly controlling the terms of employment of Plaintiffs and other similarly situated

employees.

JURISDICTION AND VENUE

24. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.

§ 1331 and by 29 U.S.C. § 201, et. seq.

25. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C.

§§ 2201 and 2202.

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26. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. §

1391(b)(1) because Defendant is headquartered in this District and a substantial portion of the

acts/omissions giving rise to this case occurred within this District.

27. At all times material to this Complaint, the Defendant was an enterprise engaged in

interstate commerce or in the production of interstate goods for commerce as defined by the Act,

29 U.S.C. §§ 203(r) and 203(s).

28. At all times material to this Complaint, Defendant simultaneously operated in

multiple states.

29. Defendant’s annual gross receipts for the three years preceding the filing of this

lawsuit exceeded $500,000.00.

FACTS COMMON TO ALL CLAIMS

The FLSA Collective

30. The proposed FLSA Collective is defined as follows:

All Assistant Department Managers and Department Managers (i.e., Non-

exempt Hourly Managers), who worked over 40 hours in any workweek, and
work or worked in Defendant’s stores throughout the United States on or after
October 18, 2020 to the date of judgment of this action.

Plaintiffs’ Off-the-Clock Work

31. Throughout their employment, Non-exempt Hourly Managers who are members of

the proposed FLSA Collective performed work off-the-clock both inside and outside of

Defendant’s stores without compensation which denied them overtime compensation.

32. While inside Defendant’s stores, Plaintiffs and similarly situated employees who

are members of the FLSA Collective worked off-the-clock prior to clocking in at the start of their

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shifts and after clocking out at the end of their shifts performing work including walking the

department with supervisors, cleaning, organizing, stocking, and assisting customers.

33. In addition, Plaintiffs and similarly situated employees would clock out for meal

breaks but were routinely interrupted during unpaid breaks to handle work matters including

responding to co-workers or supervisors inquires via text or phone, assisting customers, and/or

completing paperwork and reports, and thus did not receive a bona fide meal break or complete

payment for work performed during their meal break.

34. Upon information and belief, Defendant required that Plaintiffs and similarly

situated employees who are members of the FLSA Collective work off-the-clock to control labor

costs and expenses, and for its own convenience.

35. While outside of the Publix stores, Plaintiffs and similarly situated employees who

are members of the FLSA Collective performed work off-the-clock communicating with co-

workers and supervisors via telephone calls and text messages and/or chats about work-related

matters including, but were not limited to, scheduling, staffing, operations, goods and supplies,

and customers.

36. Defendant did not provide a method by which Plaintiffs and the FLSA Collective

could record and be paid for such time worked outside of the store.

37. Pursuant to Defendant’s policies and procedures, Defendant failed to record all of

the hours worked by Plaintiffs and the other similarly situated Non-exempt Hourly Managers,

thereby resulting in the failure to pay overtime in violation of the FLSA.

38. Plaintiffs estimate that they each worked on average 3-5 unpaid overtime hours per

workweek or more.

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Defendant’s Off-the-Clock Violations

39. Plaintiffs and FLSA Collective members worked as Non-exempt Hourly Managers

at Publix retail grocery stores.

40. Defendant is aware that Plaintiffs and the FLSA Collective worked off-the-clock

overtime hours.

41. But, Defendant failed and continues to fail to pay them all of their overtime

compensation by failing to credit them for all of the hours they work over 40 in a workweek and

suffering or permitting Plaintiffs and the FLSA Collective to work off-the-clock hours, during

which they performed their Non-exempt Hourly Managers duties.

42. Defendant maintains time records for its Non-exempt Hourly Managers throughout

the United States.

43. However, those time records fail to accurately reflect all of the hours worked by

Plaintiffs and the similarly situated retail associates, based upon Defendant’s policies and

procedures for requiring Plaintiffs and similarly situated Non-exempt Hourly Managers to work

off the clock and not crediting all time worked.

44. Defendant also failed to maintain a timekeeping system to track time worked outside

of its stores despite its employees regularly working outside of its stores.

45. Defendant suffered and permitted Plaintiffs and the FLSA Collective to work while

off-the-clock but did not pay them for these unrecorded hours in violation of the FLSA.

46. Defendant knew or should have known that Plaintiffs and the FLSA Collective

worked unpaid time because Defendant’s managers and agents witnessed and permitted unpaid time

worked by Plaintiffs and the FLSA Collective inside and outside Publix stores.

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47. Based upon Defendant’s policies and procedures, Defendant failed to keep accurate

records of hours worked by Plaintiffs and members of the FLSA Collective.

48. Defendant’s failure to pay Plaintiffs and the FLSA Collective for all hours worked

was due to a corporate policy to limit labor expenditures, preserve corporate profits, and for the

inconvenience of its operations.

FLSA COLLECTIVE ACTION ALLEGATIONS

49. Plaintiffs bring the First Cause of Action, pursuant to FLSA, 29 U.S.C. § 216(b),

on behalf of themselves and the FLSA Collective.

50. Defendant assigned and/or has been aware of all of the work that Plaintiffs and the

FLSA Collective have performed.

51. As part of its regular business practice, Defendant has intentionally, willfully, and

repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to

Plaintiffs and the FLSA Collective. This policy and pattern or practice includes, but is not limited to:

a. willfully failing to pay Plaintiffs and the members of the FLSA Collective
overtime wages for all of the hours they worked for Defendant in excess of
40 hours per workweek; and

b. willfully failing to record all of the time that its employees, including
Plaintiffs and the FLSA Collective, have worked for Defendant.

52. Defendant is aware or should have been aware that federal law requires it to pay

Plaintiffs and members of the FLSA Collective an overtime premium for all hours worked in

excess of 40 per workweek.

53. Plaintiffs and the FLSA Collective all perform or performed the similar duties of

Non-exempt Hourly Managers at Publix retail stores throughout the country.

54. Plaintiffs and the FLSA Collective all were compensated on an hourly basis.

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55. Plaintiffs and the FLSA Collective all were subject to the same employment

policies, procedures, and practices as centrally disseminated by Defendant.

56. Defendant’s unlawful conduct has been widespread, repeated, and consistent.

FIRST CAUSE OF ACTION

FLSA– Unpaid Overtime Wages
(Brought on behalf of Plaintiffs and the FLSA Collective)

57. Plaintiffs incorporates by reference all preceding allegations.

58. Defendant has engaged in a widespread pattern and practice of violating the FLSA,

as described in this Collective Action Complaint. See supra.

59. Additionally, Non-exempt Hourly Managers receive several non-discretionary

bonuses throughout the year which would need to be included in their regular rate of pay when

calculating the correct and complete overtime rate of pay, as prescribed by the FLSA.

60. Plaintiffs consented in writing to be a party to this action, pursuant to 29 U.S.C. §

216(b).

61. At all relevant times, Plaintiffs and other similarly situated current and former

employees were engaged in commerce and/or the production of goods for commerce within the

meaning of 29 U.S.C. §§ 206(a) and 207(a).

62. The overtime wage provisions set forth in §§ 201 et seq. of the FLSA apply to

Defendant.

63. Defendant is an employer engaged in commerce and/or the production of goods for

commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a).

64. At all times relevant, each Plaintiffs was an employee within the meaning of 29

U.S.C. §§ 203(e) and 207(a).

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65. Defendant has failed to pay Plaintiffs and other similarly situated current and

former employees all of the overtime wages to which they were entitled under the FLSA.

66. Defendant’s violations of the FLSA, as described in this Collective Action

Complaint, have been willful and intentional.

67. Because Defendant’s violations of the FLSA have been willful, a three-year statute

of limitations applies, pursuant to 29 U.S.C. § 255.

68. As a result of Defendant’s willful violations of the FLSA, Plaintiffs and all other

similarly situated employees have suffered damages by being denied overtime wages in

accordance with 29 U.S.C. §§ 201 et seq.

69. As a result of the unlawful acts of Defendant, Plaintiffs and other similarly situated

current and former employees have been deprived of overtime compensation and other wages in

amounts to be determined at trial, and are entitled to recovery of such amounts, liquidated damages,

prejudgment interest, attorneys’ fees, costs and other compensation pursuant to 29 U.S.C. § 216(b).

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf of all other similarly situated

persons, seek the following relief:

A. That, at the earliest possible time, Plaintiffs be allowed to give notice of this

collective action, or that the Court issue such notice, to all members of the proposed FLSA

Collective. Such notice should inform them that this civil action has been filed, of the nature of

the action, and of their right to join this lawsuit, among other things;

B. Unpaid overtime pay, and an additional and equal amount as liquidated damages

pursuant to the FLSA and the supporting United States Department of Labor regulations;

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C. Pre-judgment interest and post-judgment interest as provided by law;

D. Appropriate equitable and injunctive relief to remedy violations, including but not

necessarily limited to an order enjoining Defendant from continuing its unlawful practices;

E. Attorneys’ fees and costs of the action; and

F. Such other injunctive and equitable relief as this Court shall deem just and proper.

Dated: Boca Raton, Florida

November 21, 2023 /s/ Gregg I. Shavitz
Gregg I. Shavitz, Trial Counsel
Florida Bar No. 11398
Loren B. Donnell
Florida Bar No. 013429
SHAVITZ LAW GROUP, P.A.
981 Yamato Road, Suite 285
Boca Raton, Florida 33431
(561) 447-8888
[email protected]

Ryan Morgan, Trial Counsel

Florida Bar No. 0015527
Andrew Frisch
Florida Bar No. 27777
MORGAN AND MORGAN, P.A.
20 N. Orange Ave., Suite 1600
Orlando, FL 32801
(407) 418-2069
[email protected]
[email protected]

Attorneys for Plaintiffs and the proposed

FLSA Collective

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CERTIFICATE OF SERVICE

I hereby certify that, on November 21, 2023, this document was filed via CM/ECF, and

will be delivered electronically to the registered participants as identified on the Notice of

Electronic Filing and paper copies will be sent to those indicated as non-registered participants.

/s/Gregg I Shavitz

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