Rogers et al v. AT&T Services, Inc. et al
Filing
111
MEMORANDUM Opinion Signed by the Honorable Amy J. St. Eve on 9/3/2014:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAUL ROGERS, MARK LEVELL, and
COLLEEN TALLEY, on behalf of
themselves and all other
similarly situated plaintiffs
known and unknown,
Plaintiffs,
v.
AT&T SERVICES, INC. and LORI
BOZADA,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 11 C 5550
MEMORANDUM OPINION
Before the court are the parties’ cross-motions for summary
judgment and the defendants’ motion for sanctions. For the reasons
explained below, the court: (1) grants the defendants’ summaryjudgment motion in part, and denies it in part; (2) denies the
plaintiffs’ summary-judgment motion; and (3) denies the defendants’
motion for sanctions.
BACKGROUND
Plaintiffs Paul Rogers, Mark Levell, Mary Colleen Talley, and
Corey DalCerro worked for defendant AT&T Services, Inc. (“AT&T”) as
“Problem Determination Managers” (“PDMs”).
They allege that AT&T
and Lori Bozada, their supervisor, violated federal and state wage
- 2 -
laws by failing to pay them overtime.1
The parties dispute: (1)
whether the plaintiffs are exempt from the Fair Labor Standards
Act’s (“FLSA”) overtime requirements, see 29 U.S.C. § 213(a); (2)
whether the defendants willfully violated the FLSA, see id. at §
255(a); and (3) whether Bozada was their “employer” as the FLSA
defines that term, see id. at § 207(a)(1).2
I.
AT&T “Outage Calls”
AT&T utilizes a large network of computer systems to carry out
its business (e.g., mobile-phone sales, billing, etc.).
L.R. 56.1 Stmt. of Facts (“Defs.’ Stmt.”) ¶ 4.)
(Defs.’
The software that
performs these functions typically consists of: (1) “front-end”
applications (e.g., the electronic form that the customer completes
to order a phone); (2) “back-end” applications (e.g., software that
checks inventory to determine what phones are available); and (3)
“middleware”
applications.
(Id.
at
¶
5.)
The
middleware
applications direct the flow of information between the front-end
1/
Rogers, Levell, and Talley filed this action on their own behalf and
on behalf of similarly situated employees. The court authorized the plaintiffs
to notify potential collective-action members — current and former PDMs who
reported to Bozada — in February 2012. (See Minute Entry, dated Feb. 8, 2012,
Dkt. 30.) Only DalCerro joined the lawsuit.
2/
The plaintiffs have also filed claims against the defendants for
allegedly violating the Illinois Minimum Wage Law (“IMWL”) and the Illinois Wage
Payment and Collection Act (“IWPCA”). (See Second Am. Compl. ¶¶ 18-27.) The
parties effectively agree that the plaintiffs’ state-law claims hinge on the
defendants’ liability under the FLSA. See 820 ILCS 105/4a(2)(E) (the IMWL’s
overtime-pay requirements do not apply to administrative employees who are exempt
under the FLSA); 820 ILCS 115/3 (requiring employers to pay agreed-upon wages
within certain time periods); (Second Am. Compl. ¶¶ 21-27 (alleging that the
defendants did not pay the plaintiffs FLSA-mandated overtime pay within the time
periods that the IWPCA prescribes).)
- 3 -
and back-end applications.
(Id.)
AT&T employs information-
technology (“IT”) professionals to troubleshoot “outages” — a
general
term
performance.
describing
any
(Id. at ¶ 6.)
problem
with
an
application’s
The company maintains an electronic
alert system that detects outages as they arise and automatically
notifies relevant AT&T personnel.
(Id. at ¶ 8; Pls.’ L.R. 56.1
Stmt. of Facts (“Pls.’ Stmt.”) ¶¶ 33, 52.)
Once detected, AT&T’s
IT professionals convene an “outage call” — a teleconference (often
in conjunction with an electronic chat-room session) during which
the IT professionals attempt to identify and correct the problem.
(Def.’s Stmt. ¶¶ 9-10; see also id. at ¶ 6 (IT professionals are
“generally
assigned
to
‘teams,’
which
are
responsible
for
maintaining specific applications.”).) Outage calls vary in length
— from a few minutes to several hours — and they are often loud and
complex.
II.
(Id. at ¶ 10.)
The PDM’s Role on Outage Calls
In 2006, AT&T’s Architecture and Common Services Integration
Availability Management Team (“ACSI Team”) created the PDM position
to assist with urgent (“Priority 1" or “P1") outage calls involving
middleware applications.
(Id. at ¶ 12; see also id. at ¶ 7 (“AT&T
designates the most impactful and urgent of functionality losses as
‘Priority 1,’ or ‘P1,’ outages.”).) The PDM job description states
as follows:
Become part of an elite group of individuals whose
primary focus is to improve Availability and MTTR [“mean
- 4 -
time to restoral”] for Middleware Services and its client
applications. More specifically, as part of the
Middleware Support and Testing – Application Response
Team your responsibilities will include managing the
Problem Determination process. This will require
enhancement of the problem determination methodology and
process for Middleware products and environments. This
methodology and process will be used as part of the
overall effort to ensure that Middleware services and
environments have high availability and to ensure that
when there are outages, recovery is swift and complete.
As part of the role, the manager will be required to
participate in: Priority 1 outage calls, Progressive
Service Assurance Process (PSAP) meetings and be an
integral part of the Middleware Root Cause Analysis Team
(RCAT). This is a high visibility position that regularly
reports to upper management and will be required to
participate in an on-call rotation.
(Id. at ¶ 13; see also id. at ¶ 20.)
The parties have not
indicated whether AT&T requires applicants to have any particular
educational background.3
AT&T pays PDMs a salary — the plaintiffs
received between $80,000 and $119,000 per year — and categorizes
the position as exempt from the FLSA’s overtime requirements. (Id.
at ¶¶ 25-26.)
If the IT professionals responding to the problem determine
that it qualifies as a “P1" outage, they contact a PDM to join the
outage call.
(Pls.’ Stmt. ¶¶
10, 53-54.)
The PDMs perform
essentially two functions on the call: (1) they document what the
IT professionals are doing to resolve the problem in order to
3/
Talley has an associate’s degree in computer science from Oakland
Community College. (See Pls.’ Stmt. (Talley) ¶ 1.) Levell has an associate’s
degree in electronics. (See Pls.’ Stmt. (Levell) ¶ 1.) The parties have not
cited Rogers’s and DalCerro’s educational backgrounds.
- 5 -
notify AT&T’s management; and (2) they “facilitate” the outage call.
A.
Outage-Call Documentation
During an outage call, PDMs ask the IT professionals to
describe the problem and the steps they are taking to resolve it.
(See Pls.’ Stmt. ¶ 17 (“Plaintiffs would have to find out from a
Technical Support Team what the team was learning from the logs so
they could report that information.”); Pls.’ Stmt. (Rogers) ¶¶ 6,
21 (Rogers relied on the IT professionals because he did not have
access to the computer logs); id. at ¶ 39 (During outages, “the
PDMs did not possess any ability to log on to a server, nor any
ability
to
look
into
log
files.”).)4
They
then
enter
that
information into AT&T’s electronic Support Tracking Tool (“STT”),
from which they send notifications to AT&T management.
Stmt. ¶ 10; Pls.’ Stmt. (Rogers) ¶ 3.)
(Pls.’
The PDM completes some of
the fields on the electronic STT form by selecting options from
drop-down menus.
(Pls.’ Stmt. ¶ 12; see also ACSI STT User
Documentation, attached as Ex. 2 to Bozada Dep., at 7-10.)
The
form also includes fields in which the PDM must describe the outage
in laymen’s terms.
(See Defs.’ Stmt. ¶ 18; Pls.’ Stmt. of Add’l
Facts No. 12; see also ACSI STT User Documentation at 7-11.)
Rogers
testified
that
he
would
“frequently”
copy-and-paste
information about the outage into the STT form from messages the IT
professionals had posted on an electronic message board before he
4/
The plaintiffs have filed statements of fact relevant to all the
plaintiffs, and separately enumerated statements with respect to each plaintiff.
- 6 -
had joined the call. (Pls.’ Stmt. (Rogers) ¶ 24.) Bozada required
the PDMs that she supervised to send an initial notification to
AT&T’s management within 10 minutes after receiving an outage
notification. (Pls.’ Stmt. ¶ 10.) After the initial notification,
the PDM sends notifications to AT&T management at intervals set
forth in company guidelines.
(See Pls.’ Stmt. ¶ 9; see also ASCI
Availability Mgmt. - PDM, Roles & Responsibilities (“PDM Roles &
Responsibilities”), attached as Ex. H to Defs.’ Stmt., at Bates
Nos. 00000034-35 (notification guidelines).)
B.
Outage-Call “Facilitation”
The parties agree that the following testimony accurately
describes the PDM’s participation on outage calls:
Q.
And what do you take it to mean when you have heard
that a PDM facilitates an outage call.
A.
To me that means that they run the call; that they
keep it going kind of and make sure all the
questions that are asked are answered from whoever
needs to answer them.
If one of the technical
people said that they needed the DBA group on the
call, the PDM would say, you know, I heard so and
so say we needed DBA group. We need to get them on
here. So kind of, you know, connecting any loose
ends and keeping the call going, that’s my
definition of facilitate the call.
(Belloumini Dep., attached as Ex. B to Pls.’ Stmt., at 30; see also
id. at 46; Talley Dep. at 43-45; Bozada Decl., attached as Ex. F to
Defs.’ Stmt., ¶ 16; PDM Roles & Responsibilities at Bates No.
00000032 (“Ensure back-up support is brought to call if those
working the problem seem to be struggling.”).)
PDMs also “record”
- 7 -
“action items” that someone on the call must investigate at a later
time.
(Pls.’ Stmt. ¶ 6.)
The technical experts on the call may
suggest action items for the PDM to record. (See id.; see also
Pls.’ Stmt. (Dal Cerro) ¶ 7.)
Or else, the PDM may suggest an
action item on his or her own initiative.
(See Defs.’ Stmt. of
Add’l Facts No. 9 (“PDMs were also responsible for keeping a call
moving forward by suggesting additional participants for the call,
and suggesting action items based on information they received from
technical experts.”).)
AT&T provides written guidance regarding the PDM’s role on
outage calls.
PDM
must
A “Call Checklist” describes information that the
obtain
Responsibilities
“[d]uring
at
Bates
[r]esolution.”
Nos.
(See
00000032-33.)
PDM
AT&T
Roles
has
&
also
established outage-resolution benchmarks in the form of a flow
chart — the “ACSI P1 Problem Management Methodology Process” — that
it requires ACSI Team members (including PDMs) to follow.
(See
Pls.’ Stmt. ¶ 13; ACSI P1 Problem Management Methodology Process,
attached as Ex. 9 to Bozada Dep.)
This document requires the ACSI
Team to engage more sophisticated “tiers” of technical support
after certain intervals if the team has not yet resolved the
outage. (See ACSI P1 Problem Management Methodology Process (“Time
Elapsed is 30 mins since problem occurred” — “Can source of problem
be identified” — “NO” — “Tier I support and/or MAPS engages next
level of support (Tier II)” — “Time elapsed is 60 min[s] since
- 8 -
problem occurred — “Is outage resolved . . . .”); see also Pls.’
Stmt. ¶¶ 34-36, 45-50.).)
In 2010, Bozada encouraged PDMs to
“focus more closely” on the “Methodology” as a way to reduce
overall outage time.
(See Pls.’ Stmt. ¶¶ 29-30.)
Bozada joined a substantial percentage of the outage calls
that the plaintiffs attended — the plaintiffs’ estimates range from
80% to 98% of all such calls.
(See Pls.’ Stmt. ¶ 8 (Rogers: 80%-
90%; Talley: 98%; Dal Cerro: 95%; Levell: 80%.).)
Rogers, Talley,
and Levell testified that Bozada used AT&T’s electronic messaging
system to send them questions to ask on the call.
(See Pls.’ Stmt.
(Rogers) ¶ 25 (“Bozada would specify questions she wanted Rogers to
ask, action items that she wanted Rogers to address and how she
wanted Rogers’ verbiage to appear in the notifications; and would
ask Rogers to correct certain verbiage.”); Pls.’ Stmt. (Talley) ¶
24 (similar); Pls.’ Stmt. (Levell) ¶ 21 (similar).)
times, she would participate on the calls directly.
¶ 64; Pls.’ Stmt. (Rogers) ¶ 25.)
At other
(Pls.’ Stmt.
Amy Belluomini, an AT&T IT
professional who participated on outage calls with the plaintiffs
and Bozada, testified that Bozada would “dominate what the PDM was
supposed to be doing . . . almost on every occasion that she came
with the call.”
(Belluomini Dep. at 57; see also Pls.’ Stmt. ¶ 64;
Defs.’ Stmt. of Add’l Facts No. 11 (Bozada “took over” outage calls
when she believed that the PDM was not being assertive enough).)
Belluomini estimates that between 2006 and 2009 — her tenure as the
“team lead” for “Enterprise Websphere Support” — she participated
- 9 -
on over 100 outage calls with the plaintiffs.
(See Pls.’ Stmt. ¶
31; see also Defs.’ Stmt. of Add’l Fact No. 6.)
III. The PDM’s Role on Post-Outage Calls
PDMs convene “Root Cause Analysis Team” (“RCAT”) calls
after
the company’s IT professionals have resolved the outage. (Defs.’
Stmt. ¶ 19.)
During RCAT calls, the PDMs and the IT professionals
discuss the outage and consider ways to prevent similar outages
from occurring in the future.
(Id.)
The parties dispute the
extent to which PDMs actively participate on these “post-mortem”
calls.
The defendants contend that PDMs are responsible for: (1)
“reviewing the details of an outage and formulating questions and
comments that might help the more technically versed experts on the
call determine the underlying cause of the outage;” and (2)
assigning “action items” to appropriate IT professionals.
(Id.)
According to Bozada, “PDMs could and did determine root causes” —
i.e., the cause of the outage — “on their own.”
Add’l Fact No. 5.)
(Defs.’ Stmt. of
The plaintiffs contend that they had little
input during the calls themselves, and instead simply recorded what
the technical experts told them.
Nos. 13, 16-17; Pls.’ Stmt. ¶ 27.)
(See Pls.’ Stmt. of Add’l Fact
And Rogers testified that it
“wasn’t unusual” for Bozada to join RCAT calls.
(See Pls.’ Stmt.
(Rogers) ¶ 17.)
After the RCAT call, PDMs use the STT program to prepare a
Problem Analysis Report (“PAR”) summarizing the call. (Pls.’ Stmt.
of Add’l Facts No. 13.)
They complete certain fields in the
- 10 -
electronic PAR form by selecting options from drop-down menus.
(Id.) Rogers and Talley testified that Bozada substantially edited
their PARs, which often went through “numerous” drafts.
Stmt. (Rogers) ¶ 18; Pls.’ Stmt. (Talley) ¶¶ 27-28.)
(Pls.’
Rogers,
Talley, and DalCerro testified that Bozada did not authorize them
to send PARs to management without her prior approval.
(See Pls.’
Stmt. ¶¶ 7, 15; Pls.’ Stmt. (Rogers) ¶ 17; Pls.’ Stmt. (Talley) ¶
27; Pls.’ Stmt. (Dal Cerro) ¶¶ 14, 17.).)
DISCUSSION
The parties have filed cross-motions for summary judgment with
respect to whether the PDM position falls within the FLSA’s
administrative exemption.
The defendants also contend that the
plaintiffs have not come forward with evidence supporting their
allegation that the defendants “willfully” violated the FLSA.
Bozada has moved for summary judgment on the separate ground that
she was not the plaintiffs’ “employer” under the FLSA, and has also
moved to sanction the plaintiffs for pursuing their claims against
her.
I.
Legal Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
The court must construe “all facts and reasonable
inferences in the light most favorable to the nonmoving party.”
- 11 -
See Empress Casino Joliet Corp. v. Johnston, — F.3d —, 2014 WL
3973723, *4 (7th Cir. Aug. 15, 2014) (slip op.).
“A factual
dispute is ‘genuine’ only if a reasonable jury could find for
either party.”
Nichols v. Michigan City Plant Planning Dept., 755
F.3d 594, 599 (7th Cir. 2014) (citation and internal quotation
marks omitted).
moving
party
When the non-movant has the burden of proof, the
can
satisfy
its
burden
on
summary
judgment
by
“pointing out to the district court” that there is no evidence
supporting the nonmovant’s claim or defense.
Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986); see also Modrowski v. Pigatto,
712 F.3d 1166, 1167 (7th Cir. 2013).
“Upon such a showing, the
nonmovant must then ‘make a showing sufficient to establish the
existence
of
an
element
essential
to
that
party’s
case.’”
Modrowski, 712 F.3d at 1168 (quoting Celotex, 477 U.S. at 322).
II.
The Administrative Exemption
The
FLSA
exempts
from
overtime-pay
coverage
employed in a bona fide administrative capacity.
213(a)(1).
individuals
29 U.S.C. §
The Secretary of Labor has established a three-part
test to determine whether the administrative exemption applies:
(a) The term “employee employed in a bona fide
administrative capacity” in section 13(a)(1) of the Act
shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not
less than $455 per week (or $380 per week, if employed in
American Samoa by employers other than the Federal
Government), exclusive of board, lodging or other
facilities;
- 12 -
(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or
general business operations of the employer or the
employer’s customers; and
(3) Whose primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance.
29 CFR § 541.200(a).
It is the defendants’ burden to prove by a
preponderance of the evidence that the plaintiffs are exempt.
See
Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974);
Blanchar v. Standard Ins. Co., 736 F.3d 753, 756 (7th Cir. 2013).
When evaluating a claimed exemption, the court must conduct “a
thorough, fact-intensive analysis of the employee’s employment
duties and responsibilities.”
Schaefer-LaRose v. Eli Lilly & Co.,
679 F.3d 560, 576-77 (7th Cir. 2012).
“As a remedial statute, the
exemptions are narrowly drawn against the employers.”
Johnson v.
Hix Wrecker Serv., Inc., 651 F.3d 658, 660 (7th Cir. 2011); see
also Schaefer-LaRose, 679 F.3d at 570; but see Yi v. Sterling
Collision Centers, Inc., 480 F.3d 505, 508 (7th Cir. 2007) (the
principle of narrow interpretation does not raise the defendant’s
burden of proof beyond a preponderance of the evidence; it merely
serves as “a tie breaker.”).
“Determining the duties encompassed
by an employee’s position is a question of fact; determining the
appropriate FLSA classification is a question of law.” Roe-Midgett
v. CC Services, Inc., 512 F.3d 865, 869 (7th Cir. 2008).
- 13 -
A.
Whether the Plaintiffs Satisfy § 541.200(a)’s Minimum
Salary Requirements.
The plaintiffs concede that AT&T paid them more than $455 per
week during the relevant time period.
Pls.’ Mem. at 17.)
(See Defs.’ Stmt. ¶ 26;
The plaintiffs also admit that Levell’s salary
exceeded $100,000, (see Defs.’ Stmt. ¶ 26), making him a “[h]ighly
compensated employee” under FLSA regulations.
541.601(a).
See 29 C.F.R. §
Highly compensated employees are exempt if they
“customarily and regularly” perform one or more exempt duties of an
administrative employee.
B.
Id.
Whether the Plaintiffs’ Duties Were “Directly Related” to
AT&T’s “General Business Operations.”
The plaintiffs argue that their job duties as PDMs did not
“directly relate” to AT&T’s “general business operations.”
Pls.’ Mem. at 17-18, 23.)
(See
The Department of Labor’s regulations
provide guidance regarding this requirement:
To qualify for the administrative exemption, an
employee’s primary duty must be the performance of work
directly related to the management or general business
operations of the employer or the employer's customers.
The phrase “directly related to the management or general
business operations” refers to the type of work performed
by the employee. To meet this requirement, an employee
must perform work directly related to assisting with the
running or servicing of the business, as distinguished,
for example, from working on a manufacturing production
line or selling a product in a retail or service
establishment.
29 C.F.R. § 541.201(a).
The work that the plaintiffs performed as
PDMs was ancillary to, and distinct from, AT&T’s core business.
See Schaefer-LaRose, 679 F.3d at 576-77 (holding that the duties of
- 14 -
pharmaceutical sales representatives are “directly related” to
their employer’s “general business” because their work supports the
company’s core business, but is “distinct from it”).
As PDMs, the
plaintiffs did not sell phones or install network services.
supported
that
business
by
“facilitating”
outage
calls
They
and
summarizing information about the outage for AT&T’s management.
See 29 C.F.R. § 541.201 (a) (Exempt employees “must perform work
directly related to assisting with the running or servicing of the
business,
as
distinguished,
for
example,
from
working
on
a
manufacturing production line or selling a product in a retail or
service establishment.”).
The plaintiffs do not address Shaefer-
LaRose, which is controlling authority regarding the type of duties
that
satisfy
29
C.F.R.
§
541.200(2).5
The
undisputed
facts
establish that the plaintiffs’ duties were directly related to
AT&T’s general business.
C.
Whether
the
Plaintiffs
Exercised
Independent Judgment with Respect
Significance.
Discretion
and
to Matters of
An employee exercises discretion and independent judgment when
the employee compares and evaluates possible courses of conduct,
and acts after considering the alternatives.
5/
See 29 C.F.R. §
Instead, the plaintiffs rely on non-controlling authority from other
jurisdictions interpreting regulations that the Secretary of Labor has since
revised. See Martin v. Indiana Power Co., 381 F.3d 574, 582-83 (6th Cir. 2004);
Jackson v. McKesson Health Solutions, LLC, 2004 WL 2453000, *5 (D. Mass. Oct. 29,
2004).
- 15 -
541.202(a).
The Department of Labor has provided a non-exclusive
list of relevant factors:
[W]hether the employee has authority to formulate,
affect, interpret, or implement management policies or
operating practices; whether the employee carries out
major assignments in conducting the operations of the
business; whether the employee performs work that affects
business operations to a substantial degree, even if the
employee’s assignments are related to operation of a
particular segment of the business; whether the employee
has authority to commit the employer in matters that have
significant financial impact; whether the employee has
authority to waive or deviate from established policies
and procedures without prior approval; whether the
employee has authority to negotiate and bind the company
on significant matters; whether the employee provides
consultation or expert advice to management; whether the
employee is involved in planning long- or short-term
business objectives; whether the employee investigates
and resolves matters of significance on behalf of
management; and whether the employee represents the
company in handling complaints, arbitrating disputes or
resolving grievances.
Id. at § 541.202(b); see also Schaefer-LaRose, 679 F.3d at 582
(“The ultimate question is not whether the plaintiff did all, or
any, of the specific tasks listed in § 541.202(b); the list
identifies
exemption
itself
does
not
as
exemplary
apply
to
and
non-exhaustive.”).
“clerical
or
secretarial
The
work,
recording or tabulating data, or performing other mechanical,
repetitive, recurrent or routine work.” Id. at § 541.202(e). “The
exercise of discretion and independent judgment implies that the
employee has authority to make an independent choice, free from
immediate direction or supervision.” See id. at § 541.202(c). But
an employee may still be exempt even if more senior employees
- 16 -
review his or her decisions.
work
refers
performed.”
to
the
See id.
“importance
Id. at §541.202(a).
or
The “‘significance’ of the
consequence
of
the
work
“An employee does not exercise
discretion and independent judgment with respect to matters of
significance merely because the employer will experience financial
losses if the employee fails to perform the job properly.”
Id. at
§ 541.202(f).
1.
The Defendants’ Motion for Summary Judgment
(a) Plaintiffs Rogers, Talley, and DalCerro
The court concludes that there is a genuine dispute of fact
regarding whether the plaintiffs’ primary duty was to “run” outage
and
RCAT
calls
management.
or,
instead,
to
generate
status
reports
for
“The term ‘primary duty’ means the principal, main,
major or most important duty that the employee performs.”
29 CFR
§ 541.700(a). Relevant factors include:
[T]he relative importance of the exempt duties as
compared with other types of duties; the amount of time
spent performing exempt work; the employee’s relative
freedom from direct supervision; and the relationship
between the employee’s salary and the wages paid to other
employees for the kind of nonexempt work performed by the
employee.
Id.
The amount of time the employee spends performing exempt
duties is also relevant: “employees who spend more than 50 percent
of their time performing exempt work will generally satisfy the
primary duty requirement.”
evidence
in
the
light
most
Id. at § 541.700(b).
favorable
to
the
Viewing the
plaintiffs,
a
- 17 -
reasonable jury could conclude that the PDM’s reporting function on
outage and RCAT calls is “clerical.”
See id. at § 541.202(e) (the
exemption does not encompass clerical work).
PDMs ask questions
during outage and RCAT calls in order to complete designated fields
in the STT program.
They then record the technical experts’
responses, sometimes verbatim.
(See Pls.’ Stmt. ¶¶ 56, 62; Pls.’
Stmt. (Talley) ¶ 4; Pls.’ Stmt. (Levell) ¶¶ 19-20; Pls.’ Stmt.
(Rogers)
Collecting
¶¶
4,
facts
16,
19;
sometimes
Pls.’
Stmt.
involves
(DalCerro)
discretion
¶¶
—
as
14-15.)
when
an
employee investigates a crime and independently decides whether to
pursue certain leads.
See, e.g., Mullins v. Target Corp., No. 09
C 7573, 2011 WL 1399262, *6-7 (N.D. Ill. Apr. 13, 2011) (the
plaintiff exercised discretion when investigating fraud and theft
at
his
employer’s
troubleshooting
stores).
entails
discretion.
And
See
generally
Demos
v.
speaking,
City
of
Indianapolis, 302 F.3d 698, 705 (7th Cir. 2002) (“At a minimum,
‘putting out fires’ for his supervisor meets the discretionary
component of § 541.214(a) . . . .”).
PDMs, by contrast, summarize
another party’s investigation/troubleshooting and often do not
understand what they are summarizing.
(See, e.g., Pls.’ Stmt. ¶¶
72, 74; Pls.’ Stmt. (Talley) ¶ 19; Pls.’ Stmt. (DalCerro) ¶ 2.)
The record contains some evidence that PDMs do exercise some
discretion, but the parties dispute the extent of their authority.
Bozada praised the plaintiffs for being “assertive” and “vocal,”
- 18 -
and criticized them when they were not.
She encouraged the
plaintiffs to develop their technical knowledge in order to manage
outage calls more effectively.
See Schaefer-LaRose, 679 F.3d at
581
given
(“The
level
of
attention
to
substantive
education
demonstrates that the company viewed these individuals as employees
needing a solid understanding of the message that they were
delivering if they were to fulfill their roles as the company’s
representative
to
the
community
of
practicing
physicians.”).
Levell testified that he made “judgment call[s]” based upon his
“experience” when determining whether “the support teams seem like
they have a handle” on the problem.
B to Defs.’ Stmt., at 48.)
(Levell Dep., attached as Ex.
So, contrary to the plaintiffs’
argument, they were more than just “scriveners.”
On the other
hand, there is evidence that the plaintiffs’ role on outage calls
was limited.
The technical experts responding to the outage
determine whether it qualifies as a “P1" outage. They then contact
a PDM, who joins the call already in progress.
Rogers testified
that the appropriate application team would already be on the call
when
he
joined
it.
(See
Pls.’
Stmt.
(Rogers)
¶
5.)
The
application team often takes the initiative to obtain additional
support when they determine it is necessary.
(See Talley Dep. at
42-44 (testifying that the technical experts determined who should
be brought onto the call as additional support).) PDMs can respond
to basic cues that an outage call may have stalled — e.g., someone
- 19 -
is non-responsive or appears to be “struggling” — and then suggest
that other personnel join the call.
Belluomini’s testimony,
however, undercuts the defendants’ argument that this was their
primary duty:
Although the Plaintiffs in the Rogers litigation as PDMs
participating on the call could, theoretically sense the
technical expert struggling or reaching the limit of his
or her knowledge, in my experience I have never witnessed
one of these Plaintiffs, or any other PDM, decide on
their own that the currently engaged technical expert
needed to be replaced with a different or supplemental
tier of support.
(Belluomini Decl., attached as Ex. C to Pls.’ Stmt., ¶ 5.)
She
further testified that only the technical experts would know who to
engage next because only they have access to the data about the
affected applications and the nature of the error.
(Id. at ¶ 6;
see also Pls.’ Stmt. (Talley) ¶ 12; Pls.’ Stmt. (Levell) ¶ 12.)
Also, AT&T requires everyone on the outage call to follow the
“Problem
Management
Methodology,”
participants
must
sophisticated
support
Methodology
Process
“escalate”
teams.
(“Time
which
problems
(See
ACSI
Elapsed
is
dictates
to
P1
30
when
different,
Problem
mins
the
more
Management
since
problem
occurred” — “Can source of problem be identified” — “NO” — “Tier I
support and/or MAPS engages next level of support (Tier II) — “Time
elapsed is 60 min[s] since problem occurred — “Is outage resolved
. . . .”).)
Evidence in the record suggests that the “Problem
Management Methodology” functioned as a kind of call script.
(See
Pls.’ Stmt. (Rogers) ¶ 14 (“As a PDM, Rogers’ responsibility was to
- 20 -
follow the Problem Management Methodology Document mandates and to
ask the questions when the document required the questions to be
asked.”).) With respect to the RCAT calls, the defendants have not
cited any particular instance in which a PDM determined an outage’s
“root cause.”
In the abstract, assigning “action items” — on RCAT
and outage calls — appears to involve discretion.
(See Defs.’
Stmt. ¶ 37 (citing Levell’s testimony that he would “hound” RCAT
Team members to identify the “root cause” of an outage); id. at ¶
38 (citing Rogers’s testimony that, after consulting with the
relevant expert, he would assign due dates for action items and
extend those dates if the expert asked for more time).)
But the
voluminous summary-judgment record is short on particulars.
The
defendants have not cited any outage notifications or PAR reports.
Without knowing the PDMs’ options, it is difficult to assess
whether, or to what extent, they make independent, discretionary
decisions about “significant” matters.
Finally, none of the cases upon which the defendants rely
involves oversight comparable to the degree of supervision that
Bozada exercised over the plaintiffs’ work. Cf. Blanchar, 736 F.3d
at 758 (noting that the plaintiff “worked largely alone and met
with his supervisor only once a year”); Schaefer-LaRose 679 F.3d at
581 (“Representatives also spend the vast majority of their time
entirely unsupervised.”); Roe-Midgett, 512 F.3d at 567 (noting that
the claims-adjuster plaintiffs “spend much of their time in the
- 21 -
field without direct supervision”); Rock v. Ray Anthony Intern.,
LLC, 380 Fed.Appx. 875, 880 (11th Cir. 2010) (“Rock, in the
district court’s view, required neither input nor approval when
making these decisions.”).
The defendants argue that Bozada
monitored the plaintiffs because they lacked initiative: she would
have been less involved if the plaintiffs had been more assertive.
(See Defs.’ Stmt. of Add’l Facts Nos. 9, 11; Defs.’ Reply at 8, 1112.)
First, as the moving party, the defendants are not entitled
to that inference.
Second, they have failed to cite any evidence
suggesting that the plaintiffs were less assertive than other PDMs.
Bozada praised Rogers for being “vocal” on outage calls, but she
still attended approximately 80% of the outage calls in which he
participated. (See, e.g., AT&T Achievement and Development (2009),
attached as part of Group Ex. 3(a) to Bozada Decl., at Bates No.
ATT000133 (“Paul has increased his verbal presence on outage calls
and become more of a leader on ACSI P1 calls to drive the calls
through resolution.”).)
The defendants also argue that Bozada did
not prevent the plaintiffs from exercising independent judgment.
(See Defs.’ Reply at 8.)
But that does not make her oversight any
less pervasive.
In sum, genuine disputes of fact exist about whether Rogers,
Talley,
and
exemption.
DalCerro
qualify
for
the
FLSA’s
administrative
- 22 -
(b) Plaintiff Levell
The defendants’ motion is a closer call as it applies to
Levell.
Because Levell is a “highly compensated employee,” the
defendants only need to prove that he “customarily and regularly”
performed exempt work.
See 29 C.F.R. § 541.601(a).
“The phrase
‘customarily and regularly’ means a frequency that must be greater
than occasional but which, of course, may be less than constant.
Tasks or work performed ‘customarily and regularly’ includes work
normally and recurrently performed every workweek; it does not
include isolated or one-time tasks.”
Id. at § 541.701.
As the
court discussed in connection with the other plaintiffs, there is
undisputed evidence that PDMs exercise some discretion.
Moreover,
Levell’s own resume tends to support the defendants’ argument that
PDMs exercise discretion and independent judgment:
The main function of the ACSI PDM Team is to join
Severity 1 outage calls in a 7x24x365 environment that
affect the ACSI organization and the clients of ACSI and
to manage the outage call to resolve the trouble as
quickly as possible. Provide timely outage information
to the Leadership Team of ACSI.
The ACSI Root Cause
Analysis Team’s main function is to evaluate information
from Severity 1 outage calls including log files, alerts,
timelines and other available data to determine the root
cause of the outage. After the root cause is identified,
pursue completion of Action Items and Proactive steps to
prevent the error condition from causing future outages
to AT&T.
(See Levell Resume, attached as Ex. K to Defs.’ Stmt., at 3
(emphasis added).) On the other hand, as the court just discussed,
there
is
evidence
that
PDMs
actually
do
relatively
little
- 23 -
“managing” and “evaluating.”
(See supra pp. 16-21.)
Also, Bozada
directly supervised Levell on 80% of his outage calls, and reviewed
and approved all of his PARs.
Viewing the evidence in the light
most favorable to Levell, the defendants are not entitled to
judgment as a matter of law that he exercised discretion and
independent
judgment
on
significant
matters
more
than
“occasionally.”
2.
The Plaintiffs’ Motion for Summary Judgment
As the court previously suggested, a reasonable jury could
conclude that PDMs exercise discretion when deciding whether the
“appropriate” personnel are on an outage call. (See Levell Dep. at
48 (Levell made “judgment call[s]” based upon his “experience” when
determining whether “the support teams seem like they have a
handle” on the problem.).)
limited.
(See supra.)
Their discretion and independence were
The fact that some PDMs are more assertive
than others, however, suggests that they have leeway to decide the
best way to obtain information on outage calls.
description,
the
“PDM
Roles
&
The PDM job
Responsibilities,”
and
the
plaintiffs’ performance reviews support the conclusion that AT&T
expected PDMs to help streamline outage resolution.
(See Defs.’
Stmt. ¶ 13 (the PDM job description states that “managing” the
problem-determination process “will require enhancement of the
problem
determination
methodology
and
process
for
Middleware
products and environments”); PDM Roles & Responsibilities at Bates
- 24 -
No. 00000033 (the PDM should “observe” RCAT calls and “make
recommendations on ways to improve MTTR [mean time to restoral]”);
AT&T Achievement and Development (2009) (Rogers), attached as part
of Group Ex. 3 to Bozada Decl., at 7 (encouraging Rogers to
“develop methods that will allow him to review incidents and
formulate questions that look at not only the current incident he
is working but what actions can teams take to prevent similar
incidents from recurring (the bigger picture).”).)
PDMs undergo
several weeks of training before attending outage calls, (see
Defs.’s Stmt. ¶ 14), and Bozada encouraged the plaintiffs to learn
more about AT&T’s computer applications.
(See id. at ¶ 29; see
also AT&T Achievement and Development (2009) (Levell), attached as
Ex. 3b to Defs.’ Stmt., at Bates No. ATT000352 (“Mark has a strong
understanding of the applications and IT networks which aids in
assessing issues during outage calls — Mark should feel confident
in
sharing
quickly.”).)
that
knowledge
to
help
teams
mitigate
issues
The defendants contend that PDMs sometimes determine
an outage’s “root cause” on RCAT calls. (See Defs.’ Stmt. of Add’l
Fact No. 5; Green Dep. at 54; see also “AT&T pre-Performance
Improvement
Plan,”
attached
as
Ex.
J
to
Defs.’
Stmt.,
at
2
(“Colleen does not follow the documented process and procedures for
RCAT in performing an independent review of the incidents but works
directly with the application owner to document their words for
root cause and implementation of action items.”).)
Or else steer
- 25 -
the discussion in ways that make the calls more efficient.
Bozada Decl. ¶ 18 (“As
(See
a PDM, I was responsible for reviewing the
details of an outage before the RCAT call and formulating questions
and comments that might help the technical experts on the call
determine the underlying cause of the outage under discussion.”).)
The strongest evidence supporting the plaintiffs’ motion is
Bozada’s direct supervision.
This evidence, however, does not
entitle the plaintiffs to judgment as a matter of law.
First, the
Department of Labor’s regulations do not elevate one factor above
others in determining the exempt status of a particular employee.
The
fact
that
Bozada
supervised
most
of
the
calls
that
the
plaintiffs attended does not necessarily override evidence that
they exercised discretion and independent judgment.
Second, there
is evidence that Bozada was more active on some calls than others.
(See Defs.’ Stmt. of Add’l Facts No. 11.) Bozada criticized Talley
for not being assertive on outage and RCAT calls.
(See “AT&T pre-
Performance Improvement Plan” at 2 (criticizing Talley for relying
on other Acsi Team members to take the initiative on outage and
RCAT calls).) She also praised other plaintiffs for being “vocal,”
developing relationships with the application teams, and applying
their limited technical knowledge — not to resolve outages, but to
manage
the
outage
calls.
(See,
e.g.,
AT&T
Achievement
and
Development (2009) (Rogers), attached as part of Group Ex. 3(a) to
Bozada Decl., at Bates No. ATT000133 (“Paul has increased his
- 26 -
verbal presence on outage calls and become more of a leader on ACSI
P1 calls to drive the calls through resolution.”); “My Performance
Plan (2011)” (DalCerro), attached as Ex. 3(d) to Defs.’ Stmt., at
ATT052620 (“Corey has a great amount of technical knowledge that
allows [him] to lead incident calls, he should use this same
knowledge when assessing issues during post mortem call reviews.”);
“My Performance Plan (2011) (Levell), attached as part of Group Ex.
3(b) to Defs.’ Stmt., at Bates No. ATT000352 (“Mark has built up
relationships both within ACSI and within the RPM, IM and AOM teams
in his role and he is looked at frequently as a SME on the
availability
availability
items
for
metrics
completely.”).)
A
ACSI.
are
This
has
accurate
and
tickets
documented
could
conclude
from
reasonable
jury
helped
ensuring
our
this
evidence that the plaintiffs exercised independent judgment despite
Bozada’s supervision. The court thus denies the plaintiffs’ motion
for summary judgment.
III.
Willfulness
The defendants have also moved for summary judgment on the
plaintiffs’ claim that they willfully violated the FLSA.
(See
Second Am. Compl., Count II, ¶¶ 14-16.) The FLSA’s default statute
of limitations is two years.
See 29 U.S.C. § 255(a).
If the
plaintiffs prove a willful violation, then the FLSA extends the
statute of limitations to three years.
See id.; Bankston v. State
of Ill., 60 F.3d 1249, 1253 (7th Cir. 1995) (It is the plaintiffs’
- 27 -
burden
to
statute.).
prove
that
the
defendants
willfully
violated
the
Willfulness is a question of fact, see Pignataro v.
Port Authority of New York and New Jersey, 593 F.3d 265, 273 (3d
Cir. 2010), but the court may decide the issue as a matter of law
if the plaintiff does not produce evidence that would enable a
reasonable jury to find in his or her favor.
See Howard v. City of
Springfield, Illinois, 274 F.3d 1141, 1144 (7th Cir. 2001) (The
plaintiffs “failed to submit any evidence that the violation was
willful in this case, and therefore the court properly held that
the two-year period applied.”); Caraballo v. City of Chicago, 969
F.Supp.2d 1008, 1025 (N.D. Ill. 2013) (granting the defendant’s
motion for summary judgment where the plaintiff “failed to submit
any competent evidence” that the defendant had willfully violated
the
FLSA).
The
parties
dispute
whether
willfulness
is
an
appropriate matter for summary judgment at this stage of the case
given
the
court’s
order
bifurcating
liability
computation” for purposes of summary judgment.
and
“damages
(See Minute Entry,
dated Aug. 27, 2013, Dkt. 76; see also Pls.’ Mem. at 1, n.1; Defs.’
Reply at 15-16.)
It is difficult to see how plaintiffs’ counsel
could have construed the court’s order to exclude “willfulness”
from the current briefing. A finding that the defendants willfully
violated the statute establishes their liability for three years of
unpaid overtime; the actual amount owed during that time is a
“computational” issue.
The court’s order bifurcated liability and
- 28 -
damages only for purposes of summary judgment.
Discovery is
closed, and any evidence establishing the defendants’ willful
conduct was available to the plaintiffs when they filed their
response to the defendants’ summary-judgment motion. They have not
cited any evidence in the record that would enable a reasonable
jury to conclude that the defendants willfully violated the FLSA.
The court grants the defendants’ motion for summary judgment with
respect to Count II of the plaintiffs’ complaint.
IV.
The Defendants’ Motion for Summary Judgment on the Plaintiffs’
Claims Against Bozada and Their Motion for Sanctions
A.
Whether Bozada Was the Plaintiffs’ “Employer”
The defendants have also moved for summary judgment on the
plaintiffs’ claims against Bozada, individually.
The plaintiffs
must show that she was their “employer” to recover damages from her
for unpaid overtime.
See 29 U.S.C. § 207(a)(1); see also id. at §
203(d)
includes
(“‘Employer’
any
person
acting
directly
or
indirectly in the interest of an employer in relation to an
employee . . . .”).
Whether or not an individual is an “employer”
under the statute turns on the “economic reality” of the parties’
working relationship.
Karr v. Strong Detective Agency, Inc., a
Div. of Kane Services, 787 F.2d 1205, 1207 (7th Cir. 1986) (quoting
Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33
(1961)) (internal quotation marks omitted).
An individual may be
liable as an “employer” if he or she “had supervisory authority
over the complaining employee and was responsible in whole or part
- 29 -
for the alleged violation.”
694
(7th
Cir.
1987).
Riordan v. Kempiners, 831 F.2d 690,
Relevant
factors
include
whether
the
defendant “(1) had the power to hire and fire the employees; (2)
supervised and controlled employee work schedules or conditions of
employment; (3) determined the rate and method of payment; and (4)
maintained employment records.” Harris v. Skokie Maid and Cleaning
Service, No. 11 C 8688, 2013 WL 3506149, *5 (N.D. Ill. July 11,
2013).
The undisputed evidence establishes that Bozada was not the
plaintiffs’ “employer” under the FLSA.
The plaintiffs have not
presented any evidence that Bozada had any authority or influence
over AT&T’s FLSA obligations or its payroll.
They cite evidence
that Bozada “hired” DalCerro, (see Pls.’ Stmt. (DalCerro) ¶ 1), but
they have not argued that Bozada had the power to fire the
plaintiffs. The plaintiffs argue that Bozada is liable because she
required them to send an initial notification to AT&T management
within
10
minutes
after
receiving
an
outage
notification.
According to the plaintiffs, this “10 minute rule” kept the
plaintiffs tethered to their computers whenever they were “on
call,” contributing to the total number of overtime hours that they
worked.
(See Pls’ Mem. at 27-29.)
The FLSA does not impose a 40-
hour work week. It requires employers to pay employees time-and-ahalf for all hours worked over 40 hours.
207(a)(1).
See
29 U.S.C. §
AT&T did not pay the plaintiffs overtime because it
- 30 -
classified them as exempt, and it is undisputed that Bozada was not
responsible for that classification. (See Defs.’ Stmt. ¶ 24.) The
cases upon which the plaintiffs rely suggest that, in cases
involving
clearly
nonexempt
employees,
there
will
often
be
disputed facts about the defendant’s control over the plaintiff’s
See Arteaga v. Lynch, No. 10 C 1444, 2013 WL
working conditions.
5408580, *1 (N.D. Ill. Sept. 26, 2013); Harris, 2013 WL 3506149, at
*1.
In this case, Bozada’s control over the plaintiffs’ work
schedules is irrelevant.
In the alternative, the plaintiffs ask the court to “expand
the definition of employer to encompass such individuals as Bozada,
who
act
alone
in
creating
a
condition
of
employment
(an
unreasonable one at that) which in turn results in scores of unpaid
overtime.”
(Pls.’ Mem. at 31-32.)
The plaintiffs’ proposed rule
is unworkable, unfair, and unsupported by the law.
Bozada
authority
to
classified as exempt.
supervise
a
position
that
AT&T gave
the
company
It would serve no purpose to require her to
exercise that authority as if the position was nonexempt or else
face damages under the FLSA.
Bozada is entitled to summary
judgment on the plaintiffs’ claims against her.
B.
The Defendants’ Motion for Sanctions
The defendants have moved for sanctions against the plaintiffs
for pursuing their FLSA claims against Bozada. See Fed. R. Civ. P.
11(b).
“[A] court may impose sanctions on a party for making
- 31 -
arguments
or
unreasonable,
filing
claims
without
factual
improper purpose.”
that
are
foundation,
frivolous,
or
legally
asserted
for
an
Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.
1998) (citation and internal quotation marks omitted).
A claim is
“frivolous” if it is “baseless or made without a reasonable and
competent inquiry.”
Berwick Grain Co., Inc. v. Illinois Dept. of
Agriculture, 217 F.3d 502, 504 (7th Cir. 2000) (citation and
internal quotation marks omitted).
The FLSA “broadly” defines the
term “employer,” and there is no bright-line test to determine
whether an individual qualifies in a particular case.
See Karr,
787 F.2d at 1207; Secretary of Labor, U.S. Dept. of Labor v.
Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987).
The defendants
have not cited any cases — controlling or otherwise — that hold
that control over the decision to treat employees as exempt is
necessary to establish liability.
9-10.)
(See Defs.’ Mem. (Sanctions) at
The court concludes that the plaintiffs’ claims against
Bozada, while meritless, are not frivolous.
The defendants also
argue that the plaintiffs sued Bozada because they have a “personal
grudge against her.” (Defs.’ Sanctions Mem. at 2.) As evidence of
their desire for “vengeance,” (id. at 11), the defendants cite: (1)
Levell’s testimony that he did not like Bozada, (see Level Dep. at
83); (2) Talley’s testimony that she filed this lawsuit in part
because she felt that Bozada
had “bullied” her, (see Talley Dep.
at 115); and (3) a motion to compel that the plaintiffs filed to
- 32 -
obtain Bozada’s own employee evaluation.
Mem. at 2, n.2.)
(See Defs.’ Sanctions
The plaintiffs’ personal feelings about Bozada
are largely irrelevant given the court’s conclusion that their
claims against her are not frivolous.
The defendants argue that
the plaintiffs sought Bozada’s evaluation to harass her, but the
court concluded otherwise when it granted the plaintiffs’ motion to
compel. (See Minute Entry, dated May 13, 2013, Dkt. 52.) Finally,
Bozada’s status as a defendant has not materially increased her
participation in this case.
She is a material witness.
The
plaintiffs would have deposed Bozada even if they had not named her
as a defendant, and AT&T would have relied on her to develop and
support its defense.
The court denies the defendants’ motion for
sanctions.
CONCLUSION
The court grants the defendants’ motion for summary judgment
[64] in part, and denies it in part.
with
respect
to
the
plaintiffs’
The court grants the motion
claims
against
Bozada,
individually, and on the plaintiffs’ claim that the defendants
willfully violated the FLSA.
The court otherwise denies the
- 33 -
motion.
The court denies the plaintiffs’ motion for summary
judgment [89].
The court denies the defendants’ motion for
sanctions [67].
A status hearing is set for September 18, 2014 at
8:45 a.m. in courtroom 1241.
DATE:
September 3, 2014
ENTER:
___________________________________________
Amy St. Eve, United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?