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finding that the plaintiffs' claim that they were subjected to a common, impermissible practice trumped the disparity in their employment situations
Summary of this case from Johnson v. Koch Foods, Inc.Opinion
Insurance company employees filed collective action under the Fair Labor Standards Act (FLSA) to recover unpaid overtime compensation from employer. On employer's motion to decertify the class, the District Court, Caiazza, United States Magistrate Judge, held that: (1) differences in job duties, geographic assignments, and hourly billing rates did not warrant decertification, and (2) fact that employer would raise exemption and statute of limitation defenses did not warrant decertification.
Motion denied.
Joseph E. Fieschko, Jr., Pittsburgh, PA, John R. Linkosky, Carnegie, PA, for plaintiffs.
Robert H. Buckler, Robert C. Stevens, Benjamin D. Briggs, Tangla L. Fudge, Dena H. Sokolow, Robert D. Howell, Troutman Sanders, Judd F. Osten, Crawford & Company, Atlanta, GA, Richard L. Rosenzweig, Gaca, Matis, Baum & Rizza, Pittsburgh, PA, for defendant.
OPINION
CAIAZZA, United States Magistrate Judge.
Currently before the court is the Motion to Decertify Class filed by the defendant Crawford & Company (Crawford) at document number two hundred and twelve. Before proceeding into the substance of Crawford's motion, the court will briefly review the convoluted history of this lawsuit.
A. Procedural History
On August 12, 1998, Plaintiff Chester Porter Moss initiated this lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201 et seq., to recover unpaid overtime compensation from Crawford for his work during the clean-up of the Ashland oil spill and Exxon Valdez oil spill. (Doc. No. 1.) His Complaint did not demand a jury trial. ( Id. ) Moss also filed a Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23 on November 9, 1998. (Doc. No. 3.) On December 9, 1998, United States District Court Judge Donald J. Lee denied the plaintiff's Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. (Doc. No. 11.) On December 17, 1998, Judge Lee consolidated the lawsuit filed by James Hargrove (Hargrove) at 98-CV-1610 with Moss' lawsuit and designated civil action number 98-1350 as the lead case for both plaintiffs. (Doc. No. 16.) The parties consented to a trial before a Magistrate Judge on January 5, 1999. (Doc. No. 20.)
On February 3, 1999, the plaintiffs filed a Motion to Permit and Facilitate Notice of Pending Class Action under 29 U.S.C.A. § 216(b). (Doc. No. 23.) On May 5, 1999, the court originally denied the plaintiffs' motion for class certification under § 216(b) because they failed to establish the factors outlined by the United States Court of Appeals for the Third Circuit (Third Circuit) in Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir.1989), overruled in part on other grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). (Doc. No. 63.)
On September 14, 1999, the court resolved the statute of limitations and exemption issues raised in the plaintiffs' Motion for Partial Summary Judgment filed at document number twenty-six and in Crawford's Motion for Summary Judgment filed at document number twenty-nine. Judge Lee's Findings of Fact and Conclusions of Law in a related case, Sonnier v. Crawford & Company, Civ. A. No. 94-1755, aff'd No. 97-3096 (3d Cir. October 29, 1997), cert. denied 523 U.S. 1107, 118 S.Ct. 1676, 140 L.Ed.2d 814 (1998), were relevant to the resolution of both issues. Significantly, in Sonnier, Judge Lee concluded that Crawford's failure to post the required FLSA notices in its Exxon Valdez and Ashland oil spill offices tolled the running of the statute of limitations. On appeal, the Third Circuit affirmed Judge Lee's conclusion by specifically noting that Crawford had not produced any audit records to verify the posting of any FLSA notices. Consequently, the court applied Judge Lee's conclusions to this lawsuit through non-mutual offensive collateral estoppel and determined that Moss and Hargrove's FLSA claims were not barred by the two year statute of limitations set forth in 29 U.S.C.A. § 255(a). (Doc. No. 71.) The court also denied the parties' respective motions on the administrative exemption issue because there were outstanding factual issues with respect to the plaintiffs' duties and responsibilities. ( Id. )
Upon Crawford's Motion for Reconsideration, the court clarified its ruling on the statute of limitations issue. (Doc. No. 75 and 92.) Because Judge Lee's conclusions were limited to pre-September 1993 events, the court permitted Crawford to raise the statute of limitations defense with respect to circumstances that occurred after September 1993. (Doc. No. 92.) The court also allowed Crawford to inquire into the plaintiffs' personal knowledge of their FLSA rights because Sonnier 's conclusions of law did not address that issue. (Doc. No. 92.)
On October 28, 1999, Moss and Hargrove filed a Motion to Certify under 29 U.S.C.A. § 216(b). (Doc. No. 86.) After reviewing the affidavits filed with the motion, the court preliminarily certified an opt-in class of monitors, adjusters and invoice reviewers who were not compensated with overtime wages for their work in the Exxon Valdez and Ashland oil spills. (Doc. No. 94.) Again, Crawford challenged the court's ruling through another Motion for Reconsideration. (Doc. No. 99.) In a Memorandum Order filed on December 30, 1999, the court explained that the court made a conditional certification pursuant to the two step analysis established in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987) mandamus granted in part, appeal dismissed, Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.1988), vacated in part, modified in part, and remanded, Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J.1988), aff'd in part, appeal dismissed, Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir.1992), and that Crawford would have the opportunity to file a motion to decertify the class after the parties had completed discovery. (Doc. No. 108.)
The parties bickered over the language of the notification letter, and after the court intervened, an appropriate notice was sent to prospective members class. Seventy-four individuals filed opt-in consent forms with the court. After deposing twenty-four class members, Crawford filed its Motion to Decertify on April 5, 2000. In this motion the defendant argues that this lawsuit can not proceed as a collective action because: (1) the plaintiffs' job duties and pay provisions differ; (2) Hargrove's separate claims undermine the purpose of a collective action; and (3) the exemption and statute of limitations defense precludes resolution of the plaintiffs' claims on a class wide basis. ( See Doc. No. 212.)
B. Facts
Crawford's primary business is insurance adjustment and risk management. (Def.'s Br. in Supp. of Mot. to Decertify Class at 4.) Its Catastrophe Division (CAT) responds to natural and man-made disasters by assisting insurance companies with liability claims and clean-up programs. ( Id. ) Crawford's main office is in Atlanta, Georgia and it maintains temporary offices at each catastrophe site. ( Id. ) The defendant classifies its CAT employees as either core members or non-core employees. ( Id. at 5.) Both core members and non-core employees work at catastrophe sites on short and long term assignments and may perform their work at a variety of locations including branch and temporary offices, insurance company offices, law firms, hotel rooms and leased facilities. ( Id. ) Core members are permanent employees who receive health and pension benefits. ( Id. ) They also receive a draw against their future earnings when they are not employed on a CAT project. ( Id. ) Before September 1993, core members received a monthly draw of $200.00. (Pl.'s Resp. to Def.'s Mot. to Decertify Class, Doc. No. 225, at 4; See also Sonnier v. Crawford & Company, Civ. A. No. 94-1755 (W.D Pa. Jan. 28, 1997)) . In September 1993, Crawford began to guarantee core members a payment of $250.00 per week if they earned less than that amount on a project. ( See Edmund v. Crawford & Company, Civ. A. No. 1:95-CV-1310-JOF (N.D. GA Atlanta Div. March 31, 1997)). In contrast, Crawford assigns non-core employees to projects on an " as needed" basis and does not provide them with benefits or a draw. (Def.'s Br. in Supp. of Mot. to Decertify Class at 5.)
The law of the case doctrine applies where " ... one judge or court [adheres] to the rulings of another judge or court in the same case or closely related cases...." Pension Benefit Guaranty Corporation v. White Consolidated Industries, Inc., No. Civ. A. 91-1630, 1999 WL 680185, at *34 (W.D.Pa. July 21, 1999). To maintain consistency and avoid unnecessary reconsideration of certain information, the court will follow the pertinent findings made in Sonnier and Brock.
The name and opt-in members each worked for Crawford as CAT adjusters on the Ashland and the Exxon Valdez projects. The Ashland oil spill occurred in January 1988 on the Monongahela River near Pittsburgh, Pennsylvania. ( Id. at 5-6.) Crawford's involvement with the Ashland clean-up ended in 1991, ( Id. at 6), and it first sent CAT adjusters to assist with the Exxon Valdez oil spill in early 1989. ( Id. ) Although some CAT adjusters performed work outside of Alaska through 1993, Crawford's primary involvement with the Exxon Valdez project closed in 1991. ( Id. )
Crawford paid its CAT employees a commission that was based upon the amount billed to the client. ( Id. at 14; see also Sonnier v. Crawford & Company, Civ. A. No. 94-1755 (W.D Pa. Jan. 28, 1997) and Edmund v. Crawford & Company, Civ. A. No. 1:95-CV-1310-JOF (N.D. GA Atlanta Div. March 31, 1997)). It billed its clients in the Ashland and Exxon Valdez projects at different rates for each hour worked and then paid its employees 50% of the total amount billed. ( Id. )
Below is a basic chart which identifies the names and certain basic information regarding each class member.
NAME
POSITION
PROJECT
CORE
1. *Jeffrey Archer
Plaintiffs' Contention: Invoice Reviewer.
Exxon Valdez (Valdez and Anchorage locations)
No
Defendant's Contention: Invoice Reviewerand Adjuster. (Jeff Archer Dep. at 170, 188).
2. *Joe Archer
Plaintiffs' Contention: Monitor.
Ashland (Pittsburgh); Exxon Valdez (Seward and Valdezlocations)
No
Defendant's Contention: Monitor andInvoice Reviewer (Joe Archer Dep. 86-88, 107, 110-11).
3. *Larry Bain
Adjuster. (Bain Dep. 32).
Exxon Valdez (Valdez and Homer locations)
No
4. *William Beecher
Plaintiffs' Contention: Adjuster.
Exxon Valdez (Valdez, Anchorage, Homer and Kenailocations)
Yes after April 1990.
Defendant's Contention: Adjuster andAdjuster Supervisor. (Beecher Dep. at 43).
5. *Kenneth Bitner
Plaintiffs' Contention: Adjuster.
Exxon Valdez (Anchorage and Seattle locations)
Yes
Defendant's Contention: Adjuster and TeamLeader/Supervisor. (Bitner Dep. 69-70, 74-75).
6. *Doug Branham
Plaintiffs' Contention: Monitor andQuality Control Supervisor.
Ashland (Pittsburgh and Stuebenville locations); ExxonValdez (every location as a Quality Control Supervisor)
No
Defendant's Contention: Monitor, InvoiceReviewer, Adjuster and Quality Control Supervisor.(Branham Dep. 92, 98, 106, 122).
7. *Harold Butler
Adjuster. (Butler Dep. 103).
Exxon Valdez (Anchorage, Kodiak and Homer locations)
No
8. *Joseph Byrd
Plaintiffs' Contention: Monitor.
Exxon Valdez (Valdez and Anchorage locations)
No
Defendant's Contention: Monitor andInvoice Reviewer (Byrd Dep. 33, 44-46).
9. *James Carter
Plaintiffs' Contention: Adjuster.
Exxon Valdez (Valdez and Kodiak locations)
No
Defendant's Contention: Adjuster andMonitor (Carter Dep. at 35, 85-88).
10. Kelvin Carter
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Non-Core
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
11. Terry Childers
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
12. Frank Claunch
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed ( see Motion to Strike Deposition ofFrank Claunch.)
Defendant's Contention: No evidence; notdeposed (see Motion to Strike).
Defendant's Contention: No evidence; notdeposed (see Motion to Strike).
13. *Charles Cunningham
Adjuster. (Cunningham Dep. 31-34).
Exxon Valdez (Anchorage location)
No
14. *Dennis Diehl
Monitor. (Diehl Dep. 67, 90, 91).
Exxon Valdez (Valdez and Seward locations)
No
15. Lawrence Eason
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
16. *Silton Fuselier
Monitor. (Fuselier Dep. 38-42).
Exxon Valdez (Cordova and Valdez locations)
No
17. Sam Mickey Galloway
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
18. Raymond Scott Gammage
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
19. Ronald Glass
Plaintiffs' Contention: Adjuster andInvoice Reviewer.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
20. Bryan Graves
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
21. Edwin Graves
Plaintiffs' Contention: Adjuster andSupervisor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: Yes
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
22. William Hales
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: Yes
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
23. *James Hargrove
Plaintiffs' Contention: Claims Supervisor.
Plaintiffs' Contention: Ashland
Yes
Defendant's Contention: Claims Supervisorand Office Administrator (Hargrove Dep. 179-82).
Defendant's Contention: Hargrove ispursuing claims for Norco, Louisiana Project; PasadenaTexas Project; Buckeye Pipeline Project; DupontProject; St. Louis, Missouri Project (1993); and NorthRidge Earthquake Project and Ashland. (Hargrove Dep.206-16, 222-25, 227-28, 240-44, 263-66, 270-75.)
24. *David Harpole
Monitor (Harpole Dep. 108-09).
Exxon Valdez (Artic Salvor, Valdez, EB2 barge,Anchorage and Whittier locations)
No
25. *Lloyd Hebert
Adjuster (69-72).
Exxon Valdez (Anchorage, Cordova, Homer and Sewardlocations)
No
26. Randal Hensley
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
27. Jacquez Hewlett
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
28. *John Howard
Plaintiffs' Contention: Adjuster.
Ashland (Pittsburgh, PA and Stuebenville, Ohiolocations)
Yes
Defendant's Contention: John Howard isdeceased. Defendant deposed Howard's spouse who hadno knowledge of his duties. Other Plaintiffs havetestified that Howard was an Adjuster. (Williams Dep.146-47).
29. Wayne Hutsell
Plaintiffs' Contention: Monitor, Adjusterand Invoice Reviewer.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
30. Gary Imboden
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
31. *David Irons
Adjuster. (Irons Dep. at 50).
Exxon Valdez (Valdez location)
No
32. *Jon Kallenberger
Plaintiffs' Contention: Monitor.
Exxon Valdez (worked on barges, EB2)
No
Defendant's Contention: Monitor andInventory Control Specialist (Kallenberger Dep. 53,60.)
33. Gordon Ames Keller
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
34. Jimmy King
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
35. Floyd King
Plaintiffs' Contention: Monitor andMonitor Supervisor.
Plaintiffs' Contention: Ashland and ExxonValdez Projects
Plaintiffs' Contention: Yes
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
36. Donald Lamb
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
37. *Jerry Loudin
Plaintiffs' Contention: Monitor.
Exxon Valdez (Valdez location and various barges)
No
Defendant's Contention: Monitor, MonitorSupervisor, Inventory Control Specialist and InventoryControl Specialist Supervisor (Loudin Dep. 72, 86-88,99, 102-03).
38. Thomas Mannering
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
39. *Robert Marquardt
Plaintiffs' Contention: Adjuster.
Exxon Valdez (Valdez, Anchorage and Kodiak, AK andHouston, TX locations)
No
Defendant's Contention: Adjuster andResearcher (Marquardt Dep. at 65, 68, 74-75).
40. *Ron Matthews
Adjuster (Matthews Dep. at 88-9).
Ashland (Pittsburgh location)
Yes
41. Joseph McGann
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
42. *George McGhee
Invoice Reviewer (McGhee Dep. 50, 59).
Exxon Valdez (Valdez and Anchorage locations).
No
43. Richard Merrill
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
44. *Walter Moore
Plaintiffs' Contention: Monitor andAdjuster.
Exxon Valdez (Valdez, Cordova locations and on barges)
Yes
Defendant's Contention: Monitor, Adjusterand Supervisor. (Moore Dep. at 115, 129, 141, 148).
45. *Jan Morris
Plaintiffs' Contention: Monitor, MonitorSupervisor and Adjuster.
Exxon Valdez (Homer, Cordova, Anchorage locations andon barges)
No
Defendant's Contention: Monitor, MonitorSupervisor, Adjuster and Asset Disposal Team (MorrisDep. 81-5, 93).
46. *Porter Moss
Plaintiffs' Contention: Supervisor andAdjuster.
Ashland (Pittsburgh, PA and Stuebenville, Ohiolocations); Exxon Valdez (Valdez and Anchorage, AK,Seattle, Washington and Houston, Texas locations)
Yes
Defendant's Contention: NighttimeSupervisor for data entry and report generation group,Adjuster, Adjuster Supervisor, and other miscellaneousduties as outlined in Crawford's Motion toDecertify (Moss Dep. 122-41, 148-50, 184-89, 192-98,223-25, 239, 257-58).
47. *Tom Nort
Adjuster. (Nort Dep. 79).
Exxon Valdez (Valdez and Anchorage locations)
No
48. Barry Parks
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
49. John Pryor
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Ashland and ExxonValdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
50. Donald Reid
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
51. Lewis Robinson
Plaintiffs' Contention: Invoice Reviewerand Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
52. *Duron Scoby
Adjuster. (Scoby Dep. at 125).
Ashland (Pittsburgh location)
No
53. Harold Shreves
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
54. Walt Shupe
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
55. Thomas Siegwald
Plaintiffs' Contention: Adjuster andInvoice Reviewer.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
56. Larry Smith
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
57. *Sherman Sonnier
Plaintiffs' Contention: Invoice Reviewer.
Exxon Valdez (Valdez location)
No
Defendant's Contention: Invoice Reviewerand Monitor (Sonnier Dep. 56, 84).
58. Jack Stewart
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
59. Barbara Straham
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed. Plaintiff deceased.
Defendant's Contention: No evidence; notdeposed. Plaintiff deceased.
Defendant's Contention: No evidence; notdeposed. Plaintiff deceased.
60. *Lanny Swarthout
Monitor. (Swarthout Dep. 176).
Ashland (Pittsburgh location)
Yes
61. *David Tucker
Plaintiffs' Contention: MonitorSupervisor.
Exxon Valdez (Valdez location)
Yes
Defendant's Contention: Monitor andMonitor Supervisor (Tucker Dep. at 82-83, 97).
62. Thomas Villers, Sr.
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
63. Thomas Villers, Jr.
Plaintiffs' Contention: Monitor.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
64. Arley Wassom
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
65. *Charles Welch
Adjuster and Monitor. (Welch Dep. at 145, 188).
Exxon Valdez (Valdez, Anchorage and Kodiak locations)
No
66. Michael White
Plaintiffs' Contention: Invoice Reviewerand Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
67. Paddi White
Plaintiffs' Contention: Invoice Reviewer.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
68. *Mike Williams
Plaintiffs' Contention: Adjuster.
Ashland (Pittsburgh, PA and Stuebenville, Ohiolocations)
Yes
Defendant's Contention: Adjuster andAdjuster Supervisor. (Williams Dep. 136-37).
69. Matthew Williamson
Plaintiffs' Contention: Adjuster andMonitor.
Plaintiffs' Contention: Ashland and ExxonValdez
Plaintiffs' Contention: No
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
70. Dale Wilson
Plaintiffs' Contention: Adjuster.
Plaintiffs' Contention: Exxon Valdez
Plaintiffs' Contention: Yes
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
Defendant's Contention: No evidence; notdeposed.
71. *Charles Yawn, Jr.
Monitor. (Yawn Dep. at 71).
Exxon Valdez (Valdez, Seward and Cordova locations andvarious boats and barges)
No
FN* denotes Plaintiff has been deposed in presence of counsel for all parties. C. Legal Standard
Section 216(b) of the FLSA provides in pertinent part:
An action to recover may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.
Although the FLSA does not define the term ‘ similarly situated’, courts generally do not require prospective class members to be identical. See generally, Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 567 (1995); Mooney v. Aramco Services, Co., 54 F.3d 1207, 1212 (5th Cir.1995); Bunnion v. Consolidated Rail Corporation, Civ. A. No. 97-4877, 1998 WL 372644, at * 17 (E.D.Pa. May 14, 1998). Under the line of cases established by Lusardi the court resolves the similarly situated issue on an " ad hoc" basis by applying a two step analysis. Mooney, 54 F.3d at 1213. During the first or " notice stage", the court examines pleadings and affidavits in the record to determine whether notice should be given to potential class members. Brooks, 164 F.R.D. at 568 ( quoting Mooney, 54 F.3d at 1213-14). " Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘ conditional certification’ of a representative class." Mooney, 54 F.3d at 1214.
The full citation for Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987) is given on page 4.
Once discovery is complete and more factual information is available to the court, the defendant may file a motion to decertify the class. Id. At this juncture, the court uses a higher standard to analyze the similarly situated issue. Thiessen v. General Electric Capital Corporation, 996 F.Supp. 1071, 1080 (D.Kan.1998), class decertified in Thiessen v. General Electric Capital Corporation, 13 F.Supp.2d 1131 (D. Kan.1998). Generally, district courts have applied three factors in the second or post discovery stage to determine whether opt-in plaintiffs are " similarly situated" :
(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations.
Thiessen, 996 F.Supp. at 1080.
The first factor assesses the opt-in plaintiffs' job duties, geographic location, supervision and salary. Thiessen, 996 F.Supp. at 1081; Lusardi, 118 F.R.D. at 358-59; Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 569 (N.D.Al.1995). Generally, allegations of an " overarching" policy are insufficient, and plaintiffs are required to produce " ‘ substantial evidence’ " of a " ‘ single decision, policy or plan’ " . Thiessen, 996 F.Supp. at 1081 ( citing Brooks, 164 F.R.D. at 566.)
The second factor raises the issue of whether the potential defenses pertain to the opt-in class as a whole or whether many different defenses will be raised with respect to each individual opt-in plaintiff. Thiessen, 996 F.Supp. at 1083. Because individualized defenses prevent an efficient proceeding with a representative class, several courts have granted motions for decertification on this basis. See Thiessen, 996 F.Supp. at 1083; Lusardi, 118 F.R.D. at 370; Brooks, 164 F.R.D. at 569; and Bayles v. American Medical Response of Colorado, 950 F.Supp. 1053, 1067 (D. Colo.1996). However, the district court has the discretion to determine whether the potential defenses would make the class unmanageable. Lockhart, 879 F.2d at 52.
Finally, the fairness and procedural factors direct the court to consider whether it can analyze the opt-in class with a " broad scale approach." Lusardi, 118 F.R.D. at 360. The court should consider that the primary objectives of a § 216(b) collective action are: (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The court must also determine whether it can coherently manage the class in a manner that will not prejudice any party. Thiessen, 996 F.Supp. at 1084.
D. Discussion
Crawford has devoted much attention to differences in the name and opt-in plaintiffs' job duties, geographic assignments and hourly billing rates. Irrespective of these differences, each of the plaintiffs assert a common claim; i.e., that Crawford violated the FLSA by failing to compensate with them overtime wages for their work during the Ashland and the Exxon Valdez oil spill projects. Their assertions are supported by the opinions in Sonnier and Brock which establish that Crawford's CAT employees did not receive overtime compensation. Also, variations in the plaintiffs' duties, job locations and hourly billing rates do not differentiate the collective basis of the class to the extent that it defeats the primary objectives of a § 216(b) action. Finally, the fact that Hargrove's initial Complaint sought overtime wages for daily and hourly projects does not significantly separate his claims from those of the opt-in class.
Next, Crawford has alerted the court that it will raise an exemption defense and a statute of limitations defense for each opt-in plaintiff. As to the exemption defense, the FLSA does not require employers to pay overtime wages to employees who are " employed in a bona fide executive, administrative or professional capacity." 29 U.S.C.A. § 213(a)(1). The court also acknowledges Crawford's intention to examine each opt-in plaintiff's background and personal knowledge of the FLSA in support of their statute of limitations defense. However, after careful deliberation, the court concludes that neither defense would make the opt-in class unmanageable.
First, administrative or supervisory status may be ascertained by applying either the long or the short test. Devlin v. City of Philadelphia, No. Civ. A. 92-3214, 1993 WL 246095 *1, (E.D.Pa. June 30, 1993). The short test applies when an employee earns a salary of at least $250.00 or more per week. Devlin, 1993 WL 246095 at *1; Gusdonovich v. Business Information Company, 705 F.Supp. 262, 265 (W.D.Pa.1985.) If, as Crawford asserts, the majority of the plaintiffs received more than $250.00 per week for their work during the Ashland and the Exxon Valdez oil spills, than the exemption issue will be resolved under the short test by examining the plaintiffs' duties. See Gusdonovich, 705 F.Supp. at 265. The opt-in plaintiffs here worked primarily as monitors, adjusters, invoice reviewers and supervisors. Based upon the evidence presented to the court and the specific nature of the work performed by the CAT division, the duties of one opt-in plaintiff can not be substantially distinct from those of another opt-in plaintiff who worked in the same position. Therefore, the court will be able to coordinate the exemption issue by ascertaining the duties of each respective position.
With regard to the statute of limitations defense, the court's prior opinions permit Crawford to present evidence regarding each opt-in plaintiffs' personal knowledge of the FLSA. However, the statute of limitations will not be a particular defense raised against a specific plaintiff; rather it will be asserted against every member of the class. Decertification would require the court to perform the statute of limitations analysis in over seventy separate lawsuits and would be an inefficient use of this court's limited time. Accordingly, the effective case management and practicality considerations of the third factor favor resolving the statute of limitations issue for each plaintiff in a single class action lawsuit.
E. Conclusion
The differences in the plaintiffs' job duties, geographic locations and hourly billing rates do not destroy their collective claim for overtime wages under the FLSA. Additionally, only two common defenses rather than a series of individual defenses will be raised against each plaintiff. That fact weighs in favor of one class lawsuit rather than seventy separate actions. Finally, a class action would be a more effective use of the court's resources. Accordingly, the court will deny Crawford's Motion to Decertify filed at document number two hundred and twelve.