Williams v. Lockheed Martin Corporation et al

Filing 92

ORDER: The (Doc. 76 ) Motion for Class Certification filed by Plaintiff is denied. The (Doc. 77 ) Motion to Strike the Expert Report of Miles E. Locker filed by Defendant Lockheed Martin Corporation is granted. Signed by Judge William Q. Hayes on 6/1/2011. (mdc)(jrd)

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"Plaintiff brings this class action on behalf of themselves (sic) and a California Class

2 consisting of all individuals who are or previously were employed either by Defendant
3 Lockheed Martin Corporation in a staff position classified as exempt with the title Systems
4 Administrator, Network Data Communications Analyst, Network Data Communications Senior
5 Analyst ... in California during the period beginning July 31, 2005 and ending on the date as
6 determined by the Court.... " (ECF No. 14 at 4). Plaintiff alleges that Defendant improperly
7 classified Plaintiff and certain the other employees as "exempt" from provisions of state and
8 federal labor law. ld.
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Plaintiff asserts seven claims for relief as follows: (1) unfair competition; (2) failure to

10 pay overtime in violation of state law; (3) failure to provide wages when due; (4) failure to
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provide meal and rest periods; (5) failure to provide accurate itemized wage statements; (6)

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failure to pay overtime in violation of the federal Fair Labor Standards Act ("FLSA"); (7) for

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civil penalties pursuant to California's Private Attorney General Act.

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CONTENTIONS OF THE PARTIES
Plaintiff seeks class certification for her first through fifth claims under the California

16 Labor Code and the California Business & Professions Code § 17200 et seq. Plaintiff defines
17 the proposed class as "all those individuals employed by Defendant Lockheed Martin who
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were classified as exempt and worked in a position with the title Systems Administrator or

19 Network Data Communications Analyst [hereinafter referred to as ('Computer Technicians')] I
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during the period July 31, 2005 to the present (the 'Class Period')." (ECF No. 76-1 at 8

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(internal quotations omitted).) Plaintiff contends that common issues predominate on the

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grounds that "the primary tasks of all class members, irrespective ofcustomer or location, are

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I Although Plaintiffhas identified the job titles ofSystems Administrator and Network
Data Communications Analyst ("NDCA") in the Motion for Class Certification, Plaintiff was
employed as a Network Data Communications Senior Analyst ("Sr. NDCA") and Plaintiffhas
suomitted evidence regarding the job titles System AdminIstrator, NDCA, and Sr. NDCA in
support ofthe Motion for Class Certification. In addition, the Complaint lists the job titles of
Systems Administrator, NDCA, and Sr. NDCA among the job titles that comprise the class.
Thus, the Court construes Plaintiffs Motion to seek certification ofa class to include all those
individuals employed by Defendant Lockheed Martin who were classified as exempt and
worked in a position with the title Systems Administrator, NDCA, or Sr. NDCA during the
period July 31, 2005 to the present.

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hardware and software, coordinates installation and provides backup
recovery. Develops and monitors policies and standards for allocation
related to the use of computing resources.
(ECF No. 76-5 at 441). The NDCAjob description and Sr. NDCAjob descriptions each state:
Defines network communications and designs and implements

solutions within existin~ network. Manages load configuration of

central data communication processor and makes recommendations for

upgrade of data networks. Evaluates and reports on new analog and

dIgital communications technologies to enhance the capabilities of the

data network. Provides problem resolution for all hardware and

software elements ofthe data communication network and ensures the

availability of the data network. Proposes solutions to management to

provide all data communications requirements are based upon future

needs and current usage, configuring such solutions to optImize cost

savings. May coordinate network-oriented projects.

1Old. at 442-43.
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Plaintiffhas submitted the declarations often ofthe approximately sixty-four proposed

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class members who state that as part of their actual duties they primarily perfonned "the same

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repetitive tasks of installing, configuring, maintaining, monitoring, testing, and/or

14 troubleshooting computer equipment, applications and/or hardware." (ECF No. 76-5 at 283,
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Michael Carvalho Decl.); see also id. at 288, Barbara Emerson Decl.; id. at 293, Dana Hawkins

16 Decl.; id. at 298-99, Cecilia Knapp Dec!.; id. at 310, Michael Meyer Dec!.; id. at 315, Steve
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Motoike Dec!.; id. at 320, Devin Swanick Dec!.; id. at 325, Roy Usry Dec!.; id. at 330, Lars

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Vedvick Dec!.; id. at 335, Sylvia Wood Dec!. The declarations state that during their

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employment, proposed class members observed "the work perfonned by [their] fellow

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co-workers. As a result, [they] have observed that the other employees in [their] group all

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perfonned substantially similar tasks as [they] have described .... " (ECF No. 76-5 at 284,

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Michael Carvalho Decl.); see also id. at 289, Barbara Emerson Dec!.; id. at 294, Dana Hawkins

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Dec!.; id. at 299, Cecilia Knapp Decl.; id. at 311, Michael Meyer Dec!.; id. at 316, Steve

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Motoike Decl.; id. at 321, Devin Swanick Decl.; id. at 326, Roy Usry Dec!.; id. at 331, Lars

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Vedvick Decl.; id. at 336, Sylvia Wood Decl.

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Plaintiff has submitted the deposition of Gennaro Riticelli who was designated as the

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person most knowledgeable ofthe job duties for two proposed class members in the Enterprise

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Business Services group with the job titles of NDCAs. (ECF No. 76-5 at 3). Riticelli
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1 at 51.
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Brown states that as policies are drafted, "input is requested [from System

Administrators] as a nonnal part of instituting or writing any policy or even changing a

3 policy." Id. at 82. Brown states that Defendant uses a change control procedure that is, "really
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less of an approval, even though an approval comes out on the back end as more of a way to

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communicate ... what needs to be changed and why." Id. at 71. Brown states that there are

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"internal audits, external audits, [and] government audits." Id. at 66. Brown also states:

7 "There's all sorts of audits [that the corporate internal audits group perfonns with respect to
8 the servers]." Id. at 67.
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Plaintiff has submitted the deposition of Gregory Dotson who was designated as the

10 person most knowledgeable of the job duties for eight proposed class members who support
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the Anny Corps of Engineers ACE-IT group with the job titles of System Administrator,

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NDCA, and Sr. NDCA. (ECF No. 76-5 at 2). Dotson describes installation as including "the

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configuration, the securing of the operating system, preparing it for on (sic) the network,

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installing in applications that may reside on that server, and testing and ensuring that the server

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is perfonning as intended." Id. at 90, 105. Dotson states that employees perfonn "problem

16 resolution" which includes noticing a problem, "thoroughly diagnosing the issue" using data
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from many sources, "deveop[ing] a plan," and "implementing the plan." Id. at 98. Dotson

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describes maintenance as observing "key perfonnance metrics of the server over a period of

19 time to identify problems and when you identify those issues, ... and then you would have to
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take that knowledge and understanding and develop a plan for addressing it." Id. at 101, 108.

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With regard to the change control procedure utilized by Defendant, Dotson states that:

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change request [fonns] can be initiated ... by anyone, and then it is
reviewed. It's assigned to a change approver, and the change approver
makes the initial detennination as to whether it's something that needs
to be forwarded or not or does it need to go to the board or what level
of change is it, is it -- you know, does it Impact the enterprise, does it
impact, you know, smaller segments.

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Id. at 110. Dotson states that with regards to client requirements for backing-up files:
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They have guidelines, but not specific requirements. So again, it's very
-- it's variable dependent and it requires some analysis by the systems
administrator working very closely with the customer to detennine, you
know -- again the criticahty ofthe data is going to define or drive liow
often you back it up, where it's stored, how long it's stored, et cetera.
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1 [employees] are following Air Force guidelines." Id. at 137-38.
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Plaintiffhas submitted the deposition ofScot Norban who was designated as the person

3 most knowledgeable of the job duties for two proposed class members in the Enterprise
4 Business Services group with the job titles ofNDCAs. (ECF No. 76-5 at 3). Norban describes
5 configuration as involving the IP address phones in the network such as "identifIing] each
6 particular port, what functionality, if it was going to have a VLAN, virtual local area network
7 associated with it so it would only go to a specific environment in the network existing. And
8 testing and then implementation." Id. at 227. Norban states that the NDCAs "don't do the
9 hardware build, but they do the design of the infrastructure, what it would take for it to
10 function on the hardware itself." Id. at 237.
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Plaintiff has submitted the deposition of Plaintiff Williams, who worked as a Sr.

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NDCA. Plaintiff describes troubleshooting as figuring out what the problem is and "either

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direct[ ing] the problem to the right remedy group or consult [ing] with [one's] peers and correct

14 the issue." (ECF No. 76-5 at 42 1-22). Plaintiff states that troubleshooting is directed by others
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and it did not include "mak[ ing] a decision based on the reoccurring problem and offer[ ing]

16 solutions for it not to happen again." Id. at 422.
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Defendant has submitted the declaration of Douglas Gray, a System Administrator in

18 the enterprise Business Solutions Unix group servicing Lockheed Martin Aeronautics. (ECF
19 No. 80-5 at 7). Gray states that he "provided recommendations to [his] superiors and to the
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customer.... he would review [the customer's] contract and determine the computer

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specifications needed to fulfill the contract." Id. at 9.

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independently and with only general supervision." Id. at 11. Gray states: "Although [his]

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work was assigned [by the team lead], once [he] got an assignment [he] normally used [his]

Gray states that he "worked

24 judgnlent to decide what needed to be done to complete the assignment." Id.
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Defendant has submitted the declaration ofEugene Sonnen, a NDCA in the Enterprise

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Business Services group servicing Lockheed Martin's Information Systems and Global

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Solutions. (ECF No. 80-5 at 29). Sonnen states that he "provid[es] support to end users ..."

28 Id. at 29. Sonnen states in his declaration that he "train[ s] and mentio[ rs] individuals ... [and
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09cvl669 WQH (POR)

1 is appropriate respecting the class as a whole"; or (3) "the court finds that the questions of
2 law or fact common to class members predominate over any questions affecting only
3 individual members, and that a class action is superior to other available methods for fairly
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and efficiently adjudicating the controversy." See Fed. R. Civ. P. 23(b)(1)-(3). "The Rule

5 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to
6 warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
7 623 (1997); see also Hanlon, 150 F.3d at 1022.
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In analyzing whether a plaintiff has met her burden to show that the above

9 requirements are satisfied, a court must "analyze[] the allegations of the complaint and the
10 other material before [the court] (material sufficient to form reasonable judgment on each
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[Rule 23] requirement)." Blackie v. Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975) (noting

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that a court is to take the substantive allegations in the complaint as true); see also Hanon,

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976 F.2d at 509; Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229,233 (C.D. Cal. 2006).

14 "The Court is at liberty to consider evidence which goes to the requirements of Rule 23
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even though the evidence may also relate to the underlying merits of the case." In re Unioil

16 Secs. Litig., 107 F.R.D. 615,618 (C.D. Cal. 1985). However, a court should not judge the

17 merits of the plaintiffs claims at the class certification stage. See United Steel, Paper &
18 Forestry, Rubber, Mfg. Energy, Allied Indus. v. ConocoPhillips Co., 593 F.3d 802, 808 (9th
19 Cir. 2010); Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1232 (9th Cir. 1996); see also
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Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978).

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A district court is granted "broad discretion" to determine whether the Rule 23

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requirements have been met. Zinser, 253 F.3d at 1186; see also In re Mego Fin. Corp. Sec.

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Litig., 213 F.3d 454,461 (9th Cir. 2000) ("The district court's decision certifying the class

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is subject to a very linlited review and will be reversed only upon a strong showing that the

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district court's decision was a clear abuse of discretion.") (quotations omitted).

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The Court should consider "whether class certification would enhance efficiency

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and further judicial economy." Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,

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946 (9th Cir. 2009). "An internal policy that treats all employees alike for exemption
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However, "in cases where exempt status depends upon an individualized

2 determination of an enlployee's work, and where plaintiffs allege no standard policy
3 governing how employees spend their time, common issues of law and fact may not
4 predominate." Vinole, 571 F.3d at 946-47; see also In re Wells Fargo Home Mortg.
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Overtime Pay Litigation, 571 F.3d at 959 (explaining that the fact-finder may need to

6 "make a factual determination as to whether class members are actually performing similar
7 duties."). The question of exemption turns on the amount of time spent by class members
8 on certain tasks making individualized inquiries necessary. Jimenez, 238 F.R.D. at 251 n.9
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(citing Sav-on Drug Stores, Inc., 34 Ca1.4th 330-31, 340); see also Heffelfinger, 2008 WL

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8128621 at *24 ("Courts have declined to grant class certification ... where defendants have

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adduced evidence that their exemption mistake was confined to individual employees or

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differed across the proposed class."); Maddock v. KB Homes, Inc., 248 F.R.D. 229,243

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(C.D. Cal. 2007).

14 II.

Administrative, Professional, and Computer Professional Exemptions

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The Administrative Exemption is defined as follows:

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A person el1'lp~oyed in an administrative capacity means any

employee: Whose duties and responsibilitIes involve ... The

performance of office or non-manual work directly related to

management policies or general business operations of his/her

employer or liis employer's customers [.]

Who customarily and regularly exercises discretion and independent
judgment; and ... [w ]ho performs under only general supervision
work along specialized or technical lines requiring special training,
experience, or knowledge; or

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Who executes under only general supervision special assignments
and tasks; and
Who is primarily engaged in duties that meet the test of the
exemptIon. The activitIes constituting exempt work and non-exempt
work shall be construed in the same manner as such terms are
construed in the following regulations under the Fair Labor
Standards Act effective as of the date of this order: 29 C.F.R.
Sections 541.201-205, 541.207-208, 541.210, and 541.215.
Such employee must also earn a monthly salary equivalent to no less
than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in California Labor
Cone Section 515(c) as 40 hours per week.
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physical work) and is of such character that the output produced or
the result accomplished cannot be standardized in relation to a given
period of time.
tc) Who customarily and regularly exercises discretion and
independent judgment in the performance of duties set forth in
subparagraphs ( a) and (b).
(d) Who earns a monthly salary equivalent to no less than two (2)
times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section SlS(c) as 40 hours per
week.
8 Cal. Admin. Code § 11040(1)(A).

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The Computer Professional Exemption is defined as an employee in the computer

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software field who meets all of the following:

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( 1) The employee is primarily engaged in work that is intellectual or

creative and that requires the exercise of discretion and independent

judgment.

(2) The employee is primarily engaged in duties that consist of one or
more of the following:
(A) The application of systems analysis techniques and procedures,

including consulting with users, to determine hardware, software, or

system functional specifications.

(B) The design, development, documentation, analysis, creation,

testing, or modification of computer systems or programs, including

prot<?type~, based on and relaten to user or system design

speCIfications.

(C) The documentation, testing, creation, or modification of computer
programs related to the design of software or hardware for computer
operating systems.
(3) The employee is highly skilled and is proficient in the theoretical
and practical application of highly specialized information to
computer systems analysis, programming, or software engineering. A
job title shall not be determInative of the applicability of this
exemption.
(4) The employee's hourly rate of pay is not less than thirty-six dollars
($36.00) or, if the employee is pain on a salaried basis, the employee
earns an annual salary of not less than seventy-five thousand dollars
($75,000) for full-time employment, which is paid at least once a
month and in a monthly amount of not less than six thousand two
hundred fifty dollars ($6,250). The Division of Labor Statistics and
Research shall adjust both the hourly pay rate and the salary level
described in this paragraph on October 1 of each year to be effective
on January 1 of the following year by an amount equal to the
percentage increase in the CalIfornia Consumer Price Index for Urban
Wage Earners and Clerical Workers.

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Cal. Labor Code § 515.5(a). The computer professional exemption does not apply to an
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individual who "is engaged in the operation of computers or in the manufacture, repair, or
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maintenance of computer hardware and related equipment." Cal. Labor Code §
SlS.5(b)(3).
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09cvl669 WQH (POR)

1 processing to ensuring that systems are operational.
2

Riticelli states that configuration is a "very broad term" and Riticelli describes

3 configuration as determining appropriate connections and operating systems within routers
4 which "could be as simple as maybe two lines of code or it's complicated with thousands of
5 lines of changes, software changes." Id. at 183-84. Riticelli also states that configuration
6 could include "configuring ... solutions to optimize cost savings" and "coordinating
7 network-orientated projects." Id. at 214. Fabel describes configuration as involving an
8 audit of systems to locate dozens or hundreds of services and turned off or closing services
9 that are not needed. Id. at 253. Brown states that configuration is "an analysis tool" and
10 configuration involves "a lot of different things ... It could be just the whole design of how
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the whole system is going to work together.... " Id. at 49.

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term configuration includes tasks ranging from closing unnecessary services and

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implementing appropriate connections between systems to analysis, design, and

The evidence shows that the

14 coordination of projects to reduce costs.
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Plaintiff Williams describes troubleshooting as figuring out what the problem is and

16 "either direct[ing] the problem to the right remedy group or consult[ing] with [one's] peers
17

and correct the issue." Id. at 421-22. Plaintiff Williams states that troubleshooting does

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not include "mak[ing] a decision based on the reoccurring problem [or offering] solutions

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for it not to happen again." Id. at 422. However, Fabel describes troubleshooting as a

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"problem diagnostic function [.]" Id. at 263. Brown describes troubleshooting as involving

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a four step process of identifying a problem, resolving a problem, "analyzing ... the root

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cause of the problem[]," and document the root cause. [d. at 51. Dotson states that after,

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"thoroughly diagnosing the issue" employees, "develop a plan," and "implement[] the

24 plan." Id. at 98.

The evidence shows that the term troubleshooting includes tasks ranging

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from identifying a problem and directing it to others to performing root cause analysis,

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developing a plan, and resolving a problem.

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Dotson describes maintenance as observing "key performance metrics of the server

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over a period of time to identify problems and when you identify those issues, ... and then
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09cv1669 WQH (POR)

1 customer and the vendor [on a specialized weather system]." (ECF No. 81-5 at 14). Gray
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states that he "provided recommendations to [his] superiors and to the customer .... he

3 would review [the customer's] contract and determine the computer specifications needed
4

to fulfill the contract." (ECF No. 80-5 at 9). Sonnen states that he "provid[es] support to

5 end users ..." ld. at 29. The evidence shows that proposed class menlbers interacted with
6 and assisted the customer.
7

Brown states that as policies are drafted, "input is requested [from System

8 Administrators] as a normal part of instituting or writing any policy or even changing a
9 policy." (ECF No. 76-5 at 82). Emerson states in her deposition that she has written at
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least 70 documented procedures. (ECF No. 81-3 at 60). The evidence shows that proposed

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class members participated in policy drafting.

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Melendrez states that System Administrators and NDCAs perform training which
includes "[training] individuals on laptops, PCs, but it could also be used for training on the

14 system itself." (ECF No. 76-5 at 145). Fabel states that employees are "involved with
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training, documenting operations processes, providing documentation to users on how to

16 use a particular environment." ld. at 241. Sonnen states that he "train[ s] and mentio[ rs ]
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individuals ... [and he] overseer s] these employees' work, provider s] recommendations

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regarding key issues they have and plans they are making, provide direction as to how to

19 resolve issues, and act as a filter to ensure that only their most critical problems are brought
20 to the attention of [his] manager." (ECF No. 80-5 at 33). The evidence shows that
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proposed class members participated in training.
The Court finds that, in addition to the broad categories of work including
installation, configuration, troubleshooting, and maintenance, there is evidence that

24 proposed class members participate in design, assist the customer, draft policies, and
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participate in training. The additional tasks also encompass varying tasks with varying

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levels of complexity and are executed with varying levels ofjudgment. In this case, the

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evidence also shows that the tasks actually performed by proposed class members differs

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across the proposed class. See Heffelfinger, 2008 WL 8128621 at *24. Therefore, the
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09cv1669 WQH (POR)

1 but anybody else in the computer world that needs to make a change." (ECF No. 76-5 at
2

187). Brown states that a change control board is, "really less of an approval, even though

3 an approval comes out on the back end as more of a way to communicate ... what needs to
4 be changed and why." Id. at 71. The change control policy does not create centralized
5 control over the work of the potential class members. The change control policy also does
6 not contain a standard policy governing how employees spend their time.
With regard to guidelines and audits that potential class members follow, Riticelli

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8 states that "[t]here's certain instructions that we have that certain things can't happen
9 within the switch, accessibility." (ECF No. 76-5 at 193). Dotson states that with regards to
10 client requirements for backing-up files: "They have guidelines, but not specific
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requirements. Id. at 100. Melendrez states that every two or three years the client performs

12 an inspection to ensure guidelines regarding threats and efficiencies are met. Id. at 137-38.
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Brown states that there are "internal audits, external audits, [and] government audits." Id.

14 at 66. The guidelines and audits do not create centralized control over the work of the
15 potential class members. The guidelines and audits also do not contain a standard policy
16 governing how employees spend their time.
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In addition, Defendant has submitted evidence that employees worked under varying

18 degrees of supervision. Gray states that he "worked independently and with only general
19 supervision." (ECF No. 80-5 at 11). Gray states: "Although [his] work was assigned [by
20 the team lead], once [he] got an assignment [he] normally used [his] judgment to decide
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what needed to be done to complete the assignment." Id. Sonnen states that he is "afforded

22 wide discretion in the performance of [his] job duties." Id. at 34. The varying degrees of
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supervision indicates that Defendant does not exercise centralized control over the work of

24 the potential class members or assert a standard policy governing how employees spend
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their time. The Court finds that, the need for individual inquiry is not reduced by the

26 presence of centralized control or "standard policy governing how employees spend their
27 time[.]" Vinoie, 571 F.3d at 946-47.
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II

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1

Where an expert report is challenged at the class certification stage, the Court should

2 not "apply the full [Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993)]
3

'gatekeeper' standard ... " Dukes v. Wal-Mart, Inc., 222 F.R.D. 189, 191 (N.D. Cal. 2004).

4 The Court should consider "whether the expert evidence is sufficiently probative to be
5 useful in evaluating whether class certification requirements have been met." Id.
6 "Although this standard is 'more lenient,'" the Court "'must ensure that the basis of the
7 expert opinion is not so flawed that it would be inadmissible as a matter of law.'" In re
8 First American Corp. ERISA Litigation, Case Nos. SAC V 07-01357-JVS (RNBx), CV
9 07-07602; CV 07-07585, SACV 08-00110, 2009 WL 928294, at * 1 (C.D. Cal. Apr. 2,
10 2009) (citations omitted). "Where an 'expelt report' amounts to 'written advocacy ... akin
11

to a supplemental brief,' a motion to strike is appropriate because this evidence is not

12 useful for class certification purposes." Id. (citations omitted).
13

The Locker expert report provides a summary of the evidence and the law in this

14 case and provides opinions to the following nine questions:
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Whether all members of the class were uniformly classified by the
Defendant as Exempt; (2) Whether the tasks primarily performed by
the class members ... consisted of installing, maintaining,
configuring, monitoring, testing and troubleshooting computer
equipment, computer apl?ljcations, computer hardware anOior
conlputer networks; (3) Whether the work performed by the class
members did not require them to complete a prolonged course of
specialized intellectual instruction and possess an advanced
academic degree; (4) Whether the class members do not qualify for
the learned profession exemption because they were not required to
complete a prolonged course of specialized intellectual instruction
and possess an advanced academIC degree; (5) Whether the class
members do not qualify for the computer professional exemption
because they were engaged in the maintenance of computer hardware
and related equipment; (6) Whether the class members do not qualify
for the computer professional exemption because they were not
compensated in accordance with the requirements of the exemption;
(7) Whether the class members do not qualify for the administrative
exemption because they were not primarily engaged in work that was
directly related to the management policies or general business
()peratlons of the Defendant or the Defendant's customers; (8)
Whether the class members do not qualify of the administrative
exemption, the learned professional exemption, or the computer
professional exemption because they did not customarily and
regularly exercise oiscretion and independent judgment within the
meaning of those exemptions; and (9) Whether the class members
were properly classified as exempt employees.
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09cv1669 WQH (POR)