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denying collective action certification because the court would have had to determine whether every potential plaintiff was correctly classified as an "outside salesman," and thus excluded from the FLSA
Summary of this case from Stanfield v. First NLC Financial ServicesOpinion
IP 02-0400-C-M/S
May 1, 2003.
James D. Masur II, Locke Reynolds LLP
Michael A. Moffatt, Ogletree Deakins Nash Smoak Stewar
ORDER ON DEFENDANT'S MOTION TO WITHDRAW ORDER
This matter is before the Court on defendant's, Nortel Networks, Inc. ("Nortel"), motion to withdraw the Court's Order of November 20, 2002, which approved notification of this lawsuit to potential class members, and directed Nortel to produce names and address of potential class members. For the reasons set forth herein, Nortel's motion to withdraw is GRANTED and plaintiff's, Mark A. Clausman ("Clausman"), motions for approval of class notification and for an order for Nortel to produce are DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Clausman brought his complaint against Nortel pursuant to 29 U.S.C. § 216(b), on behalf of himself and all other similarly-situated sales personnel at Nortel. Complaint ¶ 7. Clausman alleges that he and others were salespersons for Nortel, and that Nortel did not pay the plaintiffs overtime that was due them under the Fair Labor Standards Act ("FLSA"). Id. ¶ 9. Clausman alleges that Nortel improperly classified him and others as "outside salesmen," who are exempt from the overtime protections of the FLSA. See id. ¶ 10. Clausman defines the other potential plaintiffs as those having worked for Nortel as "sales/account/territory executives/managers/account representatives." Id. ¶ 20.
In support of his motion for approval of class notification, Clausman submitted his affidavit, as well as those of two other former Nortel salespersons, tending to show that they were not "outside salesmen" exempt from receiving overtime pay, and thus, tending to show that Clausman was similarly-situated to other individuals for purposes of the representative lawsuit. Clausman testified that while employed for Nortel, he spent approximately 65 percent of his time at his home office or at Nortel's office. Affidavit of Mark A. Clausman ¶ 3. Clausman testified that he spent approximately 35 percent of his time meeting face-to-face with Nortel customers, and that at least 50 percent of those meetings included an "Outside Vendor." Id. ¶¶ 5, 8. Clausman testified that he never sold, delivered or transferred title to a Nortel product, to any customer in a face-to-face meeting, nor did he enter into a contract for the sale of a Nortel product during a face-to-face meeting with a customer. Id. ¶ 12.
Likewise, Lonnie Powell testified that he spent "the great majority" of his time at his home office or at Nortel's office. Affidavit of Lonnie Powell ¶ 3. Powell said that a "considerably smaller part" of his work time involved face-to-face meetings with customers. Id. ¶ 5. Like Clausman, Powell testified that he did not deliver equipment or order forms to customers or take purchase orders from customers while at the customers' places of business. Id. at 6. Also like Clausman, Powell said that about 50 percent of his face-to-face meetings with customers included an outside vendor. Id. ¶ 7.
Christopher Calvert similarly claimed that he spent approximately 50 percent of his work time at his home office or at Nortel's office, and the other 50 percent attending face-to-face meetings with customers. September 24, 2002, Affidavit of Christopher Calvert ¶ 3, 5. Calvert also did not deliver equipment to customers or enter into sales contracts with customers during face-to-face meetings. Id. ¶ 7. About 50 percent of Calvert's face-to-face meetings with customers included an outside vendor. Id. ¶ 9.
Based on these affidavits, the Court issued an order on November 20, 2002, granting Clausman's motions to approve notification to potential class members and for an order directing Nortel to provide names and addresses of potential class members. The order noted that the three affidavits Clausman submitted made the modest showing required to support Clausman's allegation that similarly-situated individuals exist.
On November 27, 2002, Nortel moved the Court to withdraw its November 20, 2002, order and to grant Nortel additional time to file a surreply in opposition to Clausman's request for approval of notification. On February 18, 2003, Nortel submitted a surreply to Clausman's motions, for the primary purpose of refuting Clausman's showing that others are similarly-situated.
Nortel has submitted an affidavit by Clausman's former supervisor, Mike Hinger, explaining that Nortel employs different categories of sales persons, whose sales duties and responsibilities vary. Affidavit of Mike Hinger ("Hinger Aff.") ¶¶ 9-11. Those sales persons work within different Nortel business lines, including the Carrier Group and the Enterprise Group. Id. ¶ 4. Powell testified at his deposition that sales within the Carrier Group are made "in an entirely different way" than sales made within the Enterprise Group. Deposition of Lonnie Powell at 11-12. As a sales executive in the Carrier Group, Powell worked directly with the customers and executed contracts with the customers. Id. at 11. However, in the Enterprise Group, Powell worked more closely with a distributor and did not execute contracts with end users. Id. Powell estimates that he spent about 99 percent of his time in the Enterprise Group with customers, and only about 20 percent of his time with customers in the Carrier Group. Id. at 33. When visiting customers in the Enterprise Group, Powell always had his distributor with him. Id. at 38.
Clausman, Powell, Calvert, Hinger, and Martin Richey all agree that Nortel sales employees each determine how much time to spend in or out of the office, and that each sales person performed his or her job differently. Calvert now says that he spent at least 80 percent of his time preparing for and meeting with customers. October 14, 2002, Affidavit of Christopher Calvert ¶ 6. Calvert adds that face-to-face meetings were an integral part of his sales process. Id. ¶ 7. Calvert only used phone calls to exchange information or to arrange personal meetings. Id.
Lonny Hatland, a current Nortel Territory Account Manager, spends at least 60 percent of his time in customer meetings. Affidavit of Lonny J. Hatland ("Hatland Aff.") ¶ 3. Sometimes he has a distributor with him at these meetings. Id. ¶ 4. When he was a Channel Partner Manager, Hatland spent very little of his time meeting with customers, but worked with the distributors directly. Id. ¶ 9. Each Territory Sales Representative could decide for himself what method to use to obtain sales. Deposition of Mark A. Clausman at 27-28. Hinger has testified that Territory Sales Representatives, like Clausman, make sales as "a direct result of the personal relationship and face to face meetings with customers." Hinger Aff. ¶ 14.
II. DISCUSSION
Section 16(b) of the FLSA ("Section 16(b)") provides that an action against an employer for an FLSA violation may be brought by "any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). The Court has a duty to manage the process of notifying potential plaintiffs in a representative suit under the FLSA. Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982). Section 16(b), unlike Rule 20 of the Federal Rules of Civil Procedure,
authorizes a representative action; and this authorization surely must carry with it a right in the representative plaintiff to notify the people he would like to represent that he has brought a suit, and a power in the district court to place appropriate conditions on the exercise of that right. . . . It also follows that counsel for the representative plaintiff could seek from the district court an order approving the notice, to protect himself from being accused of stirring up litigation in violation of state law, as well as an order directing the defendant, in an appropriate case, to furnish the plaintiff with the names and addresses of potential class members.
Id. One such appropriate condition this Court must make on Clausman's right to notify potential plaintiffs is that he first must make a threshold showing that he is similarly-situated to those whom he proposes to represent. See Bontempto v. Metro Networks Communications Ltd. Partnership, No. 01 C 8969, 2002 WL 1925911, *1 (N.D.Ill. May 3, 2002); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D.Minn. 1991).
The Seventh Circuit has not specifically addressed a standard for determining whether potential plaintiffs are similarly-situated. However, "courts generally do not require prospective class members to be identical." Moss v. Crawford Co., 201 F.R.D. 398, 409 (W.D. Pa. 2000). Although a plaintiff need not meet the Rule 23 standards for class certification, or be identically situated to potential class members, there should be "a demonstrated similarity among the individuals." Heagney v. European Am. Bk., 122 F.R.D. 125, 127 (E.D.N.Y. 1988); see also Garza v. Chicago Transit Auth., No. 00 C 0438, 2001 WL 503036, *2 (N.D.Ill. May 8, 2001) (holding that a plaintiff need not meet the Rule 23 requirements of numerosity, commonality and adequacy of representation). At this early stage of the case, the Court should examine the record and affidavits to determine whether notice should be given to potential plaintiffs. See Moss, 201 F.R.D. at 398. The standard at this time is "fairly lenient" and often results in the "conditional certification" of the class. Id. Later in a case, when more factual information is available, a defendant may choose to petition to decertify the class, at which time courts apply a higher standard to determine whether plaintiffs are "similarly-situated." See id. The difference in factual and employment settings of the individual plaintiffs can be examined at that time. See id. at 409-410; Champneys v. Ferguson Enter., Inc., No. IP 02-535-C H/K, 2003 WL 1562219, *4 (S.D.Ind. March 11, 2003) ("Before notice is authorized, the court is not required to come to a `final determination' that the similarly-situated requirement has been met.").
On the other hand, where liability to each plaintiff will depend on whether that plaintiff was correctly classified as an "outside salesman," the Court will be required to make a fact-intensive inquiry into each potential plaintiff's employment situation. See Pfaahler v. Consultants for Architects, Inc., No. 99 C 6700, 2000 WL 198888, *2 (N.D.Ill. Feb. 8, 2000); Tumminello v. United States, 14 Cl. Ct. 693, 697 (1988) ("The determination of whether an exemption applies to a given individual, however, is a very fact-specific exercise."). In that case, certification of a collective action is inappropriate. See id.; Donihoo v. Dallas Airmotive, Inc., No. 3:97-CV-0109-P, 1998 WL 91256, *1 (N.D.Tex. Feb. 23, 1998) ("an inquiry into the employee's specific job duties . . . is not appropriate in a class lawsuit under Section 216(b)"). Outside salesmen are excluded from the minimum wage and overtime protections of the FLSA, and thus any individual properly classified as an "outside salesman" has no FLSA claim. See 29 U.S.C. § 213(a)(1).
The FLSA does not define "outside salesmen" but the Department of Labor has provided some guidance in the regulations implementing the FLSA. An "outside salesman" is any employee:
(a) Who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business in: (1) making sales within the meaning of section 3(k) of the act; or (2) Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (b) Whose hours of work of a nature other than that described in paragraph (a)(1) or (2) of this section do not exceed 20 percent of the hours worked in the workweek by nonexempt employees of the employer: Provided, That work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, shall not be regarded as nonexempt work.29 C.F.R. § 541.500.
Central to Clausman's case is whether he was classified correctly as an outside salesman. The same would be true for every other potential plaintiff. Even those individuals with the same job title as Clausman may or may not be exempt employees. See Tumminello, 14 Cl. Ct. at 697. Accordingly, many more questions must be asked of each affiant or deponent to determine whether he was an "outside salesman." For example, the Court must determine precisely what each individual did while at his home office or Nortel's office. Was that work "incidental to" the work of outside sales? See Ackerman v. Coca-Cola Enter., Inc., 179 F.3d 1260, 1264-66 (10th Cir. 1999) (using the federal regulations as a guide to determine whether work performed by the plaintiffs/employees was "incidental to and in conjunction with" their sales). From some testimony, it appear that it was; as to others it is unclear. A related question is whether each potential plaintiff "consummated" their sales at the customer locations they visited. See id. at 1266-67. It appears from the affidavits submitted to the Court that sometimes salespersons consummated sales in conjunction with outside vendors, and sometimes without. Further, the Court must determine whether each individual spent greater than 20 percent of his workweek doing nonexempt work. While arguably the affiants have testified as to the percentage breakdown of their workweek, it is clear that each salesperson at Nortel operates differently. It is precisely because these questions must be answered that the Court cannot approve notification of potential class members. The Court cannot make these inquires of each of the unknown number of potential plaintiffs.
The November 20, 2002, order granting Clausman's request was based on a finding that his affidavit, along with those of Powell and Calvert, made the modest showing required that other individuals are similarly-situated to Clausman. The new information before the Court makes clear that (1) members of Nortel's sales staff performed their duties in a variety of ways, making individual inquiry necessary to determine whether each was properly classified as an "outside salesperson," and thus, (2) Powell's and Calvert's testimony in their original affidavits that they spent only 50 percent of their workweek in face-to-face meetings with customers does not necessarily make them similarly-situated to Clausman. It may be that Nortel improperly classified Clausman and the other affiants as outside salesmen. But the factual inquiry necessary to make that determination weighs heavily against conditionally certifying a plaintiff class. Exercising its discretion in whether to approve notification of this lawsuit to potential plaintiffs, the Court WITHDRAWS its November 20, 2002, order and DENIES Clausman's motions for approval of notification and for an order directing Nortel to produce names and addresses.
III. CONCLUSION
For the reasons discussed herein, Nortel's motion to withdraw the November 20, 2002, order is GRANTED. Clausman's motion for approval of notification is DENIED and Clausman' motion for an order directing Nortel to produce names and addresses of potential plaintiffs is DENIED.
IT IS SO ORDERED