Longlois et al v. Stratasys, Inc.
Filing
80
ORDER granting in part and denying in part plaintiff's 43 Motion for Summary Judgment; granting in part and denying in part plaintiff's 48 Motion to Exclude Expert Testimony; and denying defendant's 65 Motion for Summary Judgment. (Written Opinion) Signed by Judge Joan N. Ericksen on February 24, 2015. (CBC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Charles Longlois,
Plaintiff,
No. 13-cv-3345 (JNE/SER)
ORDER
v.
Stratasys, Inc.,
Defendant.
Plaintiff Charles Longlois brings this action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., alleging that he worked overtime hours for which his former
employer, Defendant Stratasys, Inc., did not properly compensate him. The case is before the
Court on the parties’ cross-motions for summary judgment and on Longlois’ motion to exclude
the testimony of Stratasys’ two expert witnesses.
For the reasons and in the manner set forth below, both of Longlois’ motions are granted
in part and denied in part, while Stratasys’ motion is denied.
Background
Stratasys manufactures and distributes three-dimensional printers. The company
provides installation and maintenance services for those printers through its Field Service
Engineers (“FSEs”), salaried employees in the customer service department who work out of
their homes and travel to client sites on assignments given to them by a supervisor. Stratasys
hired its first FSE in 1995, at which time it classified the position as exempt from the FLSA’s
overtime requirements.
1
Stratasys first hired Longlois as an FSE in 1997; he left the company in 2000. Longlois
was re-hired as an FSE in 2007, and he continued working for Stratasys in that capacity until
August of 2014. Longlois’ second stint with Stratasys is the focus of this action.
During that period, one of Longlois’ colleagues, Greg Holaway, raised concerns that
FSEs were routinely working substantial overtime hours for which they were not being properly
compensated. Holaway was subsequently fired, for reasons that are disputed. Thereafter, in
April of 2012, Holaway filed a putative collective action in this District, alleging that Stratasys
was in violation of the FLSA with respect to its classification of FSEs as exempt from the
statute’s overtime requirements and its corresponding failure to pay the FSEs a premium for their
overtime hours. Holaway v. Stratasys et al., No. 12-cv-998 (PAM/JSM). That case was
conditionally certified as a collective action in October of 2012. Notice was then provided to all
United States-based FSEs who had worked for Stratasys since October of 2009. Three of them –
Longlois, Duane Schwarze, and Dale Wilson – opted in to the lawsuit. (Wilson was
subsequently dismissed from the case on the joint stipulation of the parties.)
In January of 2013, as the Holaway case moved forward, Stratasys reclassified its FSEs
as non-exempt employees. With this change, Stratasys began compensating Longlois and his
fellow FSEs for any overtime worked using the “fluctuating workweek” method described at 29
C.F.R. § 778.114. Longlois agreed to this arrangement, and therefore seeks no damages for the
period after January of 2013; his claim relates only to the preceding period, during which it is
undisputed that Stratasys never paid him or any other FSE an overtime premium.
Discovery proceeded in the Holaway matter through the fall of 2013, at which time
Stratasys filed a motion to decertify the case as a collective action. In a decision that issued in
October of 2013, the Holaway court granted that motion, finding that Holaway, Longlois, and
2
Schwarze’s claims each required a fact-specific inquiry that would negate any efficiency to be
gained from maintaining the case as a collective action. As a result, Longlois and Schwarze
were removed from the Holaway action. That case then moved forward with Holaway as the
lone plaintiff.
After the decertification of Holaway, Longlois and Schwarze jointly filed this action
against Stratasys in December of 2013, asserting a single count under the FLSA for unpaid
overtime compensation. Later that same month, the Court in Holaway granted Stratasys’ motion
for summary judgment. In so doing, the Court did not reach the question of whether Stratasys
had misclassified Holaway as an exempt employee. Instead, it concluded that Holaway’s claim
failed, regardless of whether he had been misclassified, because he had not put forth sufficient
evidence on which a jury could find that he had worked overtime hours for Stratasys. Holaway
appealed that decision.
Meanwhile, this action proceeded. In May of 2014, the United States Magistrate Judge
severed Schwarze from the case, an order which the Court affirmed in June of 2014. Schwarze
has since filed a separate case of his own against Stratasys. Schwarze v. Stratasys, Inc. et al.,
No. 14-cv-2043 (PJS/JJK).
Thus proceeding alone here, Longlois filed a motion in September of 2014 seeking partial
summary judgment on a number of the affirmative defenses Stratasys asserted in its Answer, as
well as a Daubert motion targeting Stratasys’ two expert witnesses. After briefing on those
motions was completed, the Eighth Circuit issued its decision in Holaway, affirming the district
court’s grant of summary judgment to Stratasys. Holaway v. Stratasys, 771 F.3d 1057 (8th Cir.
2014). Shortly thereafter, in November of 2014, Stratasys filed its motion for summary
judgment here. The Court heard oral argument on the three pending motions together.
3
Discussion
Longlois claims that Stratasys violated the FLSA by failing to pay him at overtime rates
when he worked more than forty hours in a week during the period prior to January of 2013.
As a general rule subject to certain exceptions, the FLSA prohibits an employer from
“employ[ing] any of his employees . . . for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of [forty] hours . . . at a rate not
less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. §
207(a)(1). See also Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000) (“The
FLSA requires covered employers to compensate non-exempt employees at overtime rates for
time worked in excess of statutorily-defined maximum hours.”). If an employer violates this
provision, the statute provides for the employee to recover, through a private cause of action, “in
the amount of [his] unpaid overtime compensation . . . and in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b).
Longlois’ claim for those damages implicates a number of discrete issues, which the
parties address in depth on the three pending motions. The Court begins with Longlois’ Daubert
motion, and will then move to the parties’ competing motions for summary judgment.
I.
Daubert motion.
With his Daubert motion, Longlois urges the Court to exclude the proposed testimony of
the two expert witnesses Stratasys has designated to testify at trial, Alexander Passantino and
Neil Lapidus.
It should be noted at the outset that the parties initially debated the timing of Longlois’
motion. Stratasys previously designated Passantino and Lapidus as its testifying experts in the
4
Holaway matter, at a time when Longlois and Schwarze were participating in that suit as opt-in
plaintiffs. Accordingly, the reports that were disclosed and the depositions that were taken of
Passantino and Lapidus during discovery in the Holaway litigation pertain not only to Holaway’s
unpaid overtime claim, but also to Longlois’ and Schwarze’s.
In this action, the Scheduling Order called for Stratasys to disclose the identity of its
expert witnesses by November 1, 2014, for their reports to be provided to Longlois by December
1, and for their depositions to be completed by December 15. Longlois, however, filed his
Daubert motion in late September of 2014, before Stratasys had designated any experts here and
more than a month before its deadline for doing so. Consequently, Stratasys objected to the
motion as premature, but it did also respond on the merits of the issues raised by Longlois.
Prior to oral argument, Longlois informed the Court that Stratasys did in fact designate
both Passantino and Lapidus as its testifying experts by the November 1 deadline, and Stratasys
did not persist in its objection to the timing of the Daubert motion at the hearing. With that said,
there has been no mention from the parties that either Passantino or Lapidus provided Longlois
with a new or supplemental report specific to this case, or that any additional depositions were
taken of them. Therefore, in the absence of any indication to the contrary from the parties, the
Court understands the expert reports and depositions taken during the Holaway litigation and
submitted by Longlois to be the operative materials here, and considers the merits of the Daubert
motion to have been fully argued.
Turning to the substance of Longlois’ motion, then, it is Stratasys’ burden as the
proponent of the experts’ testimony to establish its admissibility by a preponderance of the
evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10 (1993). To do
so, Stratasys must show that the proposed testimony meets the “three prerequisites” of Federal
5
Rule of Evidence 702: (1) that the witness is “qualified as an expert by knowledge, skill,
experience, training, or education,” such that he is able to “assist the trier of fact” with matters
within his area of expertise; (2) that his testimony will be relevant, such that it “will help the trier
of fact to understand the evidence or to determine a fact in issue”; and (3) that his testimony will
be “reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true,
it provides the assistance the finder of fact requires.” Lauzon v. Senco Products, Inc., 270 F.3d
681, 686 (8th Cir. 2001) (internal quotation omitted); Fed R. Evid. 702.
For the reasons discussed below, Lapidus’ proposed testimony is admissible, but
Passantino’s is not.
A. Passantino.
Alexander Passantino is an attorney, now in private practice, who formerly worked in the
Department of Labor, including serving as the Acting Administrator of the Wage and Hour
Division. The depth of Passantino’s experience working with the wage and hour provisions of
the FLSA, and with the DOL’s regulations and interpretations of them, is evident.
Nonetheless, the testimony Stratasys proposes to elicit from Passantino is clearly
inadmissible. In his report, Passantino offers several “[o]pinions regarding the Wage and Hour
Division’s positions and practices with respect to calculating back pay.” In particular,
Passantino asserts that the fluctuating workweek method is the proper way to calculate unpaid
overtime compensation where “a non-exempt employee was paid a salary, but not overtime”;
critiques the damages calculation made by the three pre-decertification Holaway plaintiffs as
inconsistent with the FLSA and the regulations; and sets forth his view as to which sort of workrelated travel time “should be treated as FLSA hours worked.”
6
Despite the way Stratasys has couched it, Passantino’s report is a series of “legal
conclusions with no analytical reasoning or support” that, if admitted, would inappropriately
supplant “the judgment of the district court.” In re Acceptance Ins. Companies Securities
Litigation, 423 F.3d 899, 905 (8th Cir. 2005). It is fundamental that “expert testimony on legal
matters is not admissible. . . . Matters of law are for the trial judge, and it is the judge’s job to
instruct the jury on them.” S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320
F.3d 838, 841 (8th Cir. 2003). See also Police Retirement System of St. Louis v. Midwest Inv.
Advisory Service, Inc., 940 F.2d 351, 357 (8th Cir. 1991) (finding error in allowing the “former
head of the Securities and Exchange Commission’s Division of Market Regulations and a
lawyer” to “lecture[] the jury on what § 28(e) [of the Securities Exchange Act] meant” because
“[e]xplaining the law is the judge’s job” and the expert’s “extensive law-related expert testimony
allowed him to usurp the judge’s place”).
Longlois’ motion to exclude Passantino’s testimony is therefore granted.
B. Lapidus.
Longlois’ motion to exclude the proposed testimony of Neil Lapidus, however, is
unavailing. Lapidus is an experienced Certified Public Accountant who was retained by
Stratasys to review the evidence and render an opinion regarding the hours that the three predecertification Holaway plaintiffs worked during each week in the three years between August of
2009 and August of 2012. Lapidus’ report includes a spreadsheet in which he entered his
conclusions regarding the number of hours Longlois spent each day with clients, doing
administrative work, and traveling, and it also indicates the dates on which Longlois took paid
time off and in what amounts.
7
By Lapidus’ tally, Longlois worked a total of 328.75 overtime hours between August of
2009 and August of 2010; 597 overtime hours between August of 2010 and August of 2011; and
396.45 overtime hours between August of 2011 and August of 2012. Lapidus also opines that,
using the fluctuating workweek method to calculate overtime pay, Longlois would be owed
approximately $10,000 in “back wages” for the latter two years’ worth of overtime, or $13,600
for all three.
Longlois contends that Lapidus is not qualified to testify on these matters because he is
not, as his deposition made clear, an expert in the FLSA. Furthermore, Longlois claims that
Lapidus’ lack of independent knowledge of the statute’s wage and hour provisions led him to
rely unquestioningly on the legal positions expressed in Passantino’s report and to “invent” his
own methodology for determining the hours that Longlois worked.
These objections are unpersuasive. Longlois’ claim is that he worked overtime hours for
which he was not properly compensated. Stratasys did not keep a precise record of Longlois’
hours during the time period relevant to that claim. It is evident, though, that there does exist a
variety of other evidence – contemporaneous scheduling and payroll records, travel receipts, and
computer log-in information, for instance – from which Longlois’ workdays could be
reconstructed. Lapidus has done one such reconstruction, based on his review and synthesis of,
among other evidence, three years’ worth of calendar entries and expense reports. There is no
doubt that an accountant with Lapidus’ credentials is fully qualified to perform this type of
analysis, that his conclusions are based on ample data, and that his testimony will be of
assistance to the jury.
This, of course, is no commentary on whether Lapidus’ reconstruction will be persuasive.
The accounting Lapidus conducted necessarily involves interpretation of the records on which it
8
is based and requires assumptions to be drawn from them – for example, that Longlois took a one
hour meal break on all days for which his expense report contained a lunch receipt. Longlois
takes issue with these aspects of Lapidus’ proposed testimony, but “mere disagreement with the
assumptions and methodology used does not warrant exclusion of expert testimony.” David E.
Watson, P.C. v. U.S., 668 F.3d 1008, 1015 (8th Cir. 2012) (quoting Synergetics, Inc. v. Hurst,
477 F.3d 949, 956 (8th Cir. 2007)). If Longlois believes – as his motion makes clear – that
“other assumptions and methods were more appropriate” for determining his overtime hours and
calculating the appropriate compensation for them, he will “ha[ve] the opportunity to make this
apparent through cross-examination.” Id. (internal quotation omitted). It will then be for the
jury to decide the credibility and weight that should be afforded to Lapidus’ testimony.
For similar reasons, Lapidus’ use of Passantino’s report is not disqualifying, regardless of
whether Passantino’s testimony is itself admissible. See Fed. R. Evid. 703. Lapidus indicates in
his report that he relied on Passantino’s report in two ways: to set the parameters for his analysis
regarding the hours Longlois expended in compensable vs. non-compensable travel time, and to
determine that the fluctuating workweek is the proper method for calculating the compensation
that would be owed to Longlois for his past overtime hours.
Longlois will, as noted, be free to challenge at trial the framework within which Lapidus
conducted his accounting. But, significantly, Longlois has not shown here that either of the
premises Lapidus derived from Passantino’s report is flawed. As discussed below in relation to
the parties’ summary judgment motions, Longlois has not established that using the fluctuating
workweek method to calculate his unpaid overtime compensation would be inappropriate. And
as for the compensability of travel time, Longlois has made no argument at all that the rules
outlined in Passantino’s report and applied by Lapidus are legally unsound.
9
Longlois’ motion to exclude Lapidus’ testimony is therefore denied.
II.
Summary judgment motions.
Turning now to summary judgment, the parties’ cross-motions are, at bottom, founded on
fundamentally different visions of the record. In Longlois’ view, the record demonstrates
unequivocally that he worked overtime hours for which he should have been, but was not, paid at
overtime rates, and a trial is therefore needed only to determine the amount of his recovery. In
Stratasys’ view, however, no trial at all is warranted because the record cannot sustain Longlois’
claim for unpaid overtime compensation. According to Stratasys, Longlois’ evidence is
insufficient to establish that he worked any particular overtime hours, and even if not, Longlois
was not entitled to be paid an overtime premium for those hours in addition to his salary.
These motions are, of course, governed by Federal Rule of Civil Procedure 56(a), under
which summary judgment is proper only “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.” Furthermore,
“[t]he burden of demonstrating there are no genuine issues of material fact rests
on the moving party, and we review the evidence and the inferences which
reasonably may be drawn from the evidence in the light most favorable to the
nonmoving party. Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675, 680 (8th
Cir.2012) (internal quotation marks and citation omitted). The non-moving party
must substantiate his allegations by “sufficient probative evidence [that] would
permit a finding in [his] favor on more than mere speculation, conjecture, or
fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.2007) (alteration in
original) (quotation marks and citation omitted). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir.2011) (en banc) (quotation marks and citation omitted).
Holaway, 771 F.3d at 1058-59.
10
As explained below, these standards dictate that neither of the parties prevail on their
motion in its entirety. Summary judgment is, however, appropriate on the discrete issue of
misclassification. Trial will be needed to resolve the rest.
A. Misclassification.
The first issue for consideration is whether Stratasys properly determined that Longlois
was exempt from the FLSA’s overtime protections prior to the company’s decision to pay all of
its FSEs an overtime premium under the fluctuating workweek method beginning in January of
2013. Longlois argues that, as an FSE, he was a “blue collar” worker who should always have
been classified as non-exempt and therefore entitled to an overtime premium. Stratasys, though,
maintains that Longlois was appropriately deemed to be an exempt “white collar” employee in
the period before it reclassified him, along with all of the other FSEs, as non-exempt. 1
As the exemption of an employee from the FLSA’s overtime protections is an affirmative
defense for an employer accused of failing to pay overtime wages, the burden falls on Stratasys
here to prove that it correctly classified Longlois as exempt. McDonnell v. City of Omaha, Neb.,
999 F.2d 293, 295-96 (8th Cir. 1993), rejected on other grounds, Auer v. Robbins, 519 U.S. 45
(1997). That burden is not insignificant: the exemptions are “narrowly construed in order to
further Congress’ goal of providing broad federal employment protection,” and Stratasys “must
1
Whether an exemption applies to an employee is a matter of that employee’s duties and
activities. See, e.g., Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). However,
Stratasys makes no allegation, and offers no evidence, that its reclassification of FSEs as nonexempt in January of 2013 was either precipitated by or coincided with any change in their duties
or activities. And in fact, Longlois specifically testified in his deposition in February of 2013
that his job duties had not changed since Stratasys re-hired him as an FSE in 2007.
Stratasys thus attempts to persuade the Court that the very same duties and activities that
it concedes made Longlois a non-exempt employee after January of 2013 nonetheless made him
exempt before then. Stratasys offers no explanation for this anomalous position.
11
demonstrate that [Longlois] fit ‘plainly and unmistakably within [the] terms and spirit’” of at
least one of them. Spinden v. GS Roofing Prods. Co., 94 F.3d 421, 426 (8th Cir. 1996) (quoting
Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)).
The exemptions include: (1) “any employee employed in a bona fide executive,
administrative, or professional capacity,” 29 U.S.C. § 213(a)(1); (2) “computer systems analysts,
computer programmers, software engineers, and other similarly skilled computer employees,” id.
§ 213(a)(17); and (3) “[e]mployees who perform a combination of exempt duties . . . for
executive, administrative, professional, outside sales and computer employees.” 29 C.F.R. §
541.708. Stratasys argues that the FLSA’s administrative and/or combination exemptions
applied to Longlois in his job as an FSE prior to January of 2013. 2
In considering whether they did, how Longlois spent his working hours as an FSE is an
issue of fact, while the “ultimate question . . . of ‘whether [his] particular activities excluded
[him] from the overtime benefits of the FLSA is a question of law . . . governed by the pertinent
regulations promulgated by the Wage and Hour Administrator.” Spinden, 94 F.3d at 426
(quoting Icicle Seafoods, 475 U.S. at 714). See also Jarrett, 211 F.3d at 1081 (“Disputes
regarding the nature of an employee’s duties are questions of fact, but the ultimate question
whether an employee is exempt under the FLSA is an issue of law.”).
As explained below, the material facts regarding Longlois’ duties and activities as an FSE
are not disputed. On this record, Stratasys cannot meet its burden of proving that Longlois fit
plainly and unmistakably within any of the exemptions on which it relies.
2
In its Answer, Stratasys stated as an affirmative defense that “the administrative,
computer, and/or combined exemptions” applied to Longlois. On these motions, however,
Stratasys makes no argument that the computer exemption by itself would apply to Longlois. In
any event, the computer exemption is discussed below under the heading of the combination
exemption.
12
1. Administrative exemption.
Stratasys first argues that the administrative exemption applied to Longlois. That
exemption is defined by regulation as follows:
The term “employee employed in a bona fide administrative capacity” in section
13(a)(1) of the [FLSA] 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;
(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 C.F.R. § 541.200. See also 29 U.S.C. § 213(a)(1) (authorizing the Secretary of Labor to
“define[] and delimit[]” the administrative exemption).
The first of the exemption’s three conjunctive factors certainly applied to Longlois in his
position as an FSE, but the undisputed facts demonstrate that the latter two did not.
a. Management or general business operations.
The regulations make clear that, as a function of the second factor, the administrative
exemption encompasses only work that is “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).
A job satisfies this factor where the employee’s “primary duty” falls within
functional areas such as tax; finance; accounting; budgeting; auditing; insurance;
quality control; purchasing; procurement; advertising; marketing; research; safety
and health; personnel management; human resources; employee benefits; labor
relations; public relations, government relations; computer network, internet and
database administration; legal and regulatory compliance; and similar activities.
13
29 C.F.R. § 541.201(b).
The record here cannot support Stratasys’ contention that, as a Field Service Engineer,
Longlois’ primary duty was to perform “management or general business operations” work. To
the contrary, the record before the Court shows that Longlois’ primary duty as an FSE – his
“principal, main, major or most important duty,” 29 C.F.R. § 541.700(a) – was to provide
technical support to Stratasys’ customers by installing and servicing their printers in the field.
The basic rhythm of Longlois’ workdays as an FSE is not disputed. 3 Longlois, who did
not report to Stratasys’ office, was based out of his home and dispatched by a supervisor. Upon
receiving an assignment, Longlois reviewed the available information and arranged his own
travel to the customer’s location. Once on-site, he completed the assigned task, whether it be
installing a newly-purchased printer or repairing one already installed. On these trips, Longlois
also interacted with the customers, training them in operating the printer and its software as well
as providing instruction in basic preventative maintenance. Then, with the assignment
completed, Longlois filled out paperwork tracking the tasks he had performed for the customer
and documenting his expenses. Afterwards, Longlois contacted the customers to follow up on
his visit and ensure that they were satisfied with the work he had done.
Despite Stratasys’ efforts to parse the language of the exemption in its favor, these facts
cannot be construed to show that, as an FSE, Longlois was primarily engaged in performing
“office or non-manual work directly related to the management or general business operations”
3
Indeed, Stratasys makes a point of crediting and relying on Longlois’ deposition
testimony regarding his work activities, writing in its memorandum that
Longlois cannot escape his own testimony that his job duties consist of initial
installation of hardware and software; problem diagnosis (troubleshooting);
emergency and preventative maintenance; on-site customer support; traveling
alone from his home office and working alone; training customers; and doing
personal business when not at a customer’s site.
14
of Stratasys or its customers, as the exemption requires. The record is susceptible to no other
conclusion but that “the character of [Longlois’] job as a whole,” 29 C.F.R. § 541.700(a), was
that of a customer service technician. Indeed, Stratasys itself asserts pointedly in its
memorandum that “Longlois’ typical work day consisted of performing maintenance (85% of the
day) and installations (10% of the day) at customers’ work premises,” acknowledges that “the far
[sic] majority of [Longlois’] duties was problem solving broken 3D printers,” and states as a
“fact” that “85% of his job was troubleshooting, problem-solving and interfacing with the
customer, alone, to solve their problem with the 3D printer to their satisfaction.”
This is not the sort of work that is described in the second factor of the administrative
exemption.
b. Discretion on matters of significance.
Furthermore, even if Stratasys could carry its burden with respect to the second factor, its
contention that Longlois’ work as an FSE fit within the administrative exemption would
nonetheless fail on the third factor. There, the exemption requires that the employee’s “primary
duty include[] the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200.
Longlois’ primary duty, as just noted, was to install and service customers’ printers in the
field. According to Stratasys, that duty required Longlois to exercise the requisite “discretion
and independent judgment” because, on his site visits, he was “virtually unsupervised” in his
interactions with the customers and had to “troubleshoot, diagnose and resolve any problems”
with their printers.
15
However, the regulations explicitly state that, to satisfy the exemption, “[t]he exercise of
discretion and independent judgment must be more than the use of skill in applying wellestablished techniques, procedures or specific standards described in manuals or other sources.”
29 C.F.R. § 541.202(e). Yet that is precisely what Longlois did. The record demonstrates that,
to install and service printers, Longlois followed checklists and manuals provided to him by
Stratasys. Even when a broken printer presented a difficult or unfamiliar problem, Longlois used
his skill and experience – what he called in his deposition his “instinct” – to apply and adapt the
techniques and procedures in those materials to it. In fact, Stratasys itself summed it up well
when it pointed out that “Longlois testified that there could be ‘endless’ amount of things wrong
with a 3D printer and that he was creative in performing his job duties. At the end of the job,
Longlois would simply make sure he did everything on the checklist.”
What’s more, to satisfy the third factor of the exemption, the employee must have the
authority or responsibility to use discretion and independent judgment “with respect to matters of
significance.” The regulations indicate that the term “matters of significance” includes
“management policies or operating practices,” “major assignments in conducting the operations
of the business,” “matters that have significant financial impact,” “long- or short-term business
objectives,” and “represent[ing] the company in handling complaints, arbitrating disputes or
resolving grievances.” 29 C.F.R. § 541.202. Providing technical support to customers, though
no doubt an important aspect of Stratasys’ business, is thus not a “matter of significance” in the
administrative sense in which that term is used in the exemption.
For any and all of these reasons, the administrative exemption does not apply to Longlois.
16
2. Combination exemption.
Stratasys next argues that the FLSA’s combination exemption applied to Longlois. The
combination exemption is set forth in the FLSA’s regulations as follows:
Employees who perform a combination of exempt duties as set forth in the
regulations in this part for executive, administrative, professional, outside sales
and computer employees may qualify for exemption. Thus, for example, an
employee whose primary duty involves a combination of exempt administrative
and exempt executive work may qualify for exemption. In other words, work that
is exempt under one section of this part will not defeat the exemption under any
other section.
29 C.F.R. § 541.708. According to Stratasys, Longlois qualified for this exemption prior to
January of 2013 because his primary duty involved a combination of exempt administrative and
exempt computer work.
This argument fails. As discussed above, Longlois’ work as an FSE did not fall within
the administrative exemption. Nor did his job duties and activities satisfy the requirements for
the computer exemption, which are as follows:
The [overtime protections] of this title shall not apply with respect to . . . any
employee who is a computer systems analyst, computer programmer, software
engineer, or other similarly skilled worker, whose primary duty is—
(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 prototypes,
based on and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer
programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B), and (C) the
performance of which requires the same level of skills, and
who, in the case of an employee who is compensated on an hourly basis, is
compensated at a rate of not less than $27.63 an hour.
29 U.S.C. § 213(a)(17). See also 29 C.F.R. § 541.400(b).
17
Stratasys makes little effort to show how any of Longlois’ duties could satisfy any of
these factors. Instead, it simply asserts that “[s]ome of [Longlois’] duties, if not administrative,
could very well fall under the computer professional exemption” because: those “duties consisted
of installing, maintaining, troubleshooting and diagnosing Stratasys’ 3D printing hardware and
software”; he “must test the printers prior to leaving the customer, and may make modifications
(albeit temporary) while waiting for a part to arrive”; and he “liken[ed] himself to a professional
(an accountant), . . . as [FSEs] must code their expenses with a general ledger code.”
This is clearly insufficient. Stratasys’ loose treatment of the computer exemption is
similar to one that was roundly rejected by the Sixth Circuit:
[The employer] selectively identifies certain words from this [exemption]—
particularly “consulting with users” and “testing”—and applies them out of
context. There is simply no evidence that [the employee] “consults with users, to
determine hardware, software, or system functional specifications.” [The
employee] “consults with users” for purposes of repair and user support, not to
determine what “hardware, software, or system functional specifications” the
[employer’s] facility will employ, as a systems analyst might. Likewise, when
[the employee] does “testing,” he is testing things to figure out what is wrong
with a workstation, printer, or piece of cable so that he can restore it to working
order. He is not doing the type of testing that is involved in creating a system,
determining the desired settings for a system, or otherwise substantively affecting
the system. Indeed, he is merely ensuring that the particular machine is working
properly according to the specifications designed and tested by other . . .
employees.
Maintaining the computer system within the predetermined
parameters does not require “theoretical and practical application of highlyspecialized knowledge in computer systems analysis, programming, and software
engineering.”
Martin v. Indiana Michigan Power Co., 381 F.3d 574, 580-81 (6th Cir. 2004).
Furthermore, Stratasys conspicuously fails to acknowledge that the regulations specify
that servicing of computer and related equipment – which, it is undisputed, was the core of
Longlois’ job as an FSE – does not fall within the scope of the computer exemption:
The exemption for employees in computer occupations does not include
employees engaged in the manufacture or repair of computer hardware and
18
related equipment. Employees whose work is highly dependent upon, or
facilitated by, the use of computers and computer software programs (e.g.,
engineers, drafters and others skilled in computer-aided design software), but who
are not primarily engaged in computer systems analysis and programming or
other similarly skilled computer-related occupations identified in § 541.400(b),
are also not exempt computer professionals.
29 C.F.R. § 541.401.
In short, on this record, Stratasys cannot meet its burden of proving that the
administrative, computer, or combination exemptions applied to Longlois in his job as an FSE.
Summary judgment on the issue of misclassification is therefore granted to Longlois.
B. Overtime hours.
On a claim for unpaid overtime compensation, misclassifying an employee as exempt
does not by itself give rise to an employer’s liability; rather, the employer will be liable for
damages only if the employee worked overtime hours for which the employer, owing to that
misclassification, failed to pay him an overtime premium. See Holaway, 771 F.3d at 1059
(declining to address misclassification where employee “failed to put forth evidence sufficient to
demonstrate he ever worked more than forty hours per week”). Accordingly, the next point of
contention between the parties centers on whether the record does, or could, establish that
Longlois in fact worked overtime hours prior to January of 2013.
The FLSA requires an employer to “make, keep, and preserve such records of the persons
employed by him and of the wages, hours, and other conditions and practices of employment
maintained by him . . . .” 29 U.S.C. § 211(c). Compliance with this provision of the statute by
the employer – the party “who is in position to know and to produce the most probative facts
concerning the nature and amount of work performed,” Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687 (1946), superseded by statute on other grounds, Portal–to–Portal Act of 1947,
19
Pub.L. No. 80–49, 61 Stat. 84 – would, of course, greatly aid the inquiry into whether the
employee in fact worked overtime hours for which he was not properly compensated, and if so in
what amount.
Here, however, Stratasys concedes that it did not keep records of the hours that Longlois
worked during the period in which it misclassified him. It has long been the law that, in these
circumstances, “employees are not denied recovery under the FLSA simply because they cannot
prove the precise extent of their uncompensated work.” Holaway, 771 F.3d at 1059 (citing Dole
v. Tony & Susan Alamo Found., 915 F.2d 349, 351 (8th Cir. 1990)). Instead, the employee’s
overtime hours are to be determined through a burden-shifting scheme:
When the employer has kept proper and accurate records the employee may easily
discharge his burden by securing the production of those records. But where the
employer’s records are inaccurate or inadequate and the employee cannot offer
convincing substitutes a more difficult problem arises. The solution, however, is
not to penalize the employee by denying him any recovery on the ground that he
is unable to prove the precise extent of uncompensated work. Such a result would
place a premium on an employer’s failure to keep proper records in conformity
with his statutory duty; it would allow the employer to keep the benefits of an
employee’s labors without paying due compensation as contemplated by the Fair
Labor Standards Act. In such a situation we hold that an employee has carried out
his burden if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference. The
burden then shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence. If the employer fails to
produce such evidence, the court may then award damages to the employee, even
though the result be only approximate.
Anderson, 328 U.S. at 686-88. Accord Holaway, 771 F.3d at 1059; Carmody v. Kansas City Bd.
of Police Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013).
Stratasys focuses its request for summary judgment here, arguing that Longlois cannot
meet his initial burden on the record he has assembled. For his part, Longlois seeks partial
summary judgment in the other direction, arguing that the record reveals no genuine dispute as to
20
the material fact that he “did, indeed, work some workweeks over 40 hours and was not
compensated for such.”
However, neither of these positions is persuasive under the Rule 56 standards, and both
motions, in this respect, are therefore denied. This conclusion flows directly from the irregular
manner in which the motions have been presented and argued to the Court, and it turns
particularly on considerations surrounding two pieces of evidence: Longlois’ Third Supplemental
Answers to Stratasys’ interrogatories and Lapidus’ proposed expert testimony. These issues are
addressed below.
1. Procedural history.
Longlois began this round of motion practice when he filed his motion for partial
summary judgment in late September of 2014; Stratasys filed its motion approximately six
weeks later, in early November of 2014. The relevant procedural history, however, stretches
back to the fall of 2012, when Longlois joined the Holaway action as an opt-in plaintiff. That
move triggered Longlois’ duty to disclose to Stratasys his computation of his claimed damages
under Rule 26(a)(1)(A)(iii) and to respond, under Rule 33(b), to its interrogatories seeking
information about the overtime hours for which he claims he was not properly compensated.
Longlois initially made those disclosures and provided those answers between December
of 2012 and May of 2013. During that period, Longlois served Stratasys with what he refers to
as his Attachment A, a document in which he calculates the amount he is owed in unpaid
overtime compensation by “approximat[ing]” that he worked 60 hours per week in every week
between August of 2009 and December of 2012. Attachment A, however, contains no
information regarding any specific hours Longlois claims to have worked in any specific
21
workweek during that period. Similarly, in his initial and first two supplemental responses to
Stratasys’ interrogatories, Longlois described only in very general terms the pattern of his
workweeks as an FSE, based upon his own recollections.
Unsatisfied with that information, Stratasys pressed Longlois and his fellow Holaway
plaintiffs to use the contemporaneous business records it had disclosed to them to account for the
specific overtime hours they claimed to have worked in particular workweeks. They refused.
See Order of June 17, 2013, Holaway v. Stratasys, No. 12-cv-998 (PAM/JSM), ECF No. 145 at
2-8. Stratasys then filed a motion requesting that the Magistrate Judge compel them to do so.
The Magistrate Judge, however, determined that the parties’ dispute over whether Longlois and
his Holaway co-plaintiffs should utilize Stratasys’ business records to identify the specific
overtime hours they claim to have worked would “only go[] to the weight of the evidence and
d[id] not lead to the conclusion that plaintiffs did not answer the interrogatories.” Id. at 12. But
with that said, and with fact discovery having by that time closed in Holaway, the Magistrate
Judge found that “this lawsuit has reached a point where [Stratasys] must be able to rely on
plaintiffs’ supplemental answers” and disclosures; the Magistrate Judge therefore “precluded [the
plaintiffs] from changing at trial their damage calculations or the basis for their calculations.” Id.
at 14.
The Holaway co-plaintiffs’ decision to stand on the general answers and disclosures they
had made regarding their claimed overtime hours proved to be ill-fated for Holaway. The case
was soon decertified as a collective action, and Holaway’s claim was therefore the only one to be
adjudicated on its merits when Stratasys later moved for summary judgment. On that motion,
the district court determined that Holaway’s claim failed due to the weakness of his evidence:
Holaway’s only evidence of the hours he worked is his own testimony. Such
testimony may be sufficient in some cases to establish the threshold issue of
22
damages, but here Holaway’s testimony is wildly inconsistent and at times wholly
implausible. It cannot therefore support his burden in this case. The employer’s
“failure to provide accurate time records reduces the [employee’s] burden, but
does not eliminate it.” Carmody v. Kansas City Bd. Of Police Comm’rs, 713 F.3d
401, 407 (8th Cir. 2013). Holaway may have a relaxed burden, but he “must still
prove the existence of damages.” Id. As in Carmody, all Holaway offers are
vague and general “approximations” that simply do not suffice to allow any
reasonable factfinder to determine that he in fact worked more than 40 hours in
any given week. “[W]ithout specific dates worked [or] specific hours worked”
Holaway has failed to provide evidence of overtime hours worked in violation of
the FLSA. Id. Summary judgment is therefore appropriate.
Order of Dec. 20, 2013, Holaway v. Stratasys, No. 12-cv-998 (PAM/JSM), ECF No. 90 at 6-7.
Longlois had filed this action just two weeks before that order issued in December of
2013. But, even confronted at the very outset of this case with the Holaway court’s clear finding
that an FLSA plaintiff’s “vague and general ‘approximations’” of his overtime hours do not
suffice under governing Eighth Circuit precedent, 4 Longlois made no move here to revise or
expand upon the information regarding his claimed hours that he had provided to Stratasys
during discovery in Holaway. In fact, Longlois took the opposite tack in this case and
definitively indicated, both to Stratasys and to the Court, that he had nothing to add to the
disclosures and interrogatory answers he had already provided.
For instance, Longlois took the position in the Rule 26(f) Report, which the parties
presented to the Court in March of 2014, that “all fact discovery and expert discovery” relevant
to this case had been completed “[p]rior to [d]e-certification” of Holaway. Rule 26(f) Report,
ECF No. 14 at 2. Longlois therefore requested that this action proceed immediately to
dispositive motion practice and trial. Id. Stratasys, though, stated that some “[m]inimal
discovery is needed.” Id. at 5.
4
Longlois has been represented at all times – both in this case and during his time as an
opt-in plaintiff in Holaway – by the same attorney who represented Holaway.
23
Longlois “strongly oppose[d Stratasys’] proposal to re-open discovery,” id., but the
Magistrate Judge evidently concurred with Stratasys on the point. The Scheduling Order, which
issued in early September of 2014, set the deadlines for expert discovery discussed above in
relation to Longlois’ Daubert motion while also providing a short period for fact discovery, all
aspects of which were to “be commenced in time to be completed” by November 15, 2014.
Pretrial Scheduling Order, ECF No. 42 at 1.
In mid-September of 2014, approximately two weeks after that Scheduling Order issued,
Longlois served Stratasys with his initial disclosures for this case. There, he represented that
Plaintiff Longlois’ damages and related information and documents in this matter
are “identical” to his damages and related information, documents, deposition
testimony and his affidavit disclosed, provided, produced, and served in the
Holaway matter and therefore such information and documents are incorporated
by reference herein and will be used by Plaintiff in this matter, which includes but
is not limited to Plaintiff Longlois’ Supplemental Answers to Defendant’s
Interrogatories, dated April 1, 2013, along with Plaintiff’s “Attachment A” thereto
dated March 29, 2013 containing the hereinunder plaintiff’s damage information.
With this statement, Longlois effectively certified that his Attachment A and the interrogatory
answers he had provided to Stratasys during Holaway amounted to a “complete and correct”
accounting as to his claimed overtime hours. See Fed. R. Civ. P. 26(g)(1) (“By signing [a
disclosure], an attorney or party certifies that to the best of the person’s knowledge, information,
and belief formed after a reasonable inquiry [the disclosure] is complete and correct as of the
time it is made.”).
What’s more, only one week after thus declaring his intention to stand on those Holaway
materials in this case without conducting any further discovery – and still six weeks before the
November 15 fact discovery deadline – Longlois in fact did so by moving for partial summary
judgment. In his briefing, Longlois offers little support for his position that the record leaves no
genuine dispute as to whether he worked uncompensated overtime hours. Longlois points only
24
to a portion of a declaration he had submitted during Holaway in which he states that he
“routinely work[ed] significant overtime hours beyond the standard 40 hour workweek,” while
also quoting from the depositions, taken during Holaway, of a manager and supervisor at
Stratasys who testified that to their knowledge “some” FSEs had “sometimes” worked more than
forty hours per week. While Longlois need not match “the exactness and precision of
measurement that would be possible had [Stratasys] kept records [of his overtime] in accordance
with” the FLSA, Anderson, 328 U.S. at 688, none of this very limited evidence describes or
references any specific hours that Longlois claims to have worked in any workweek.
After briefing on Longlois’ motion was completed, the Eighth Circuit issued its decision
on Holaway’s appeal, affirming the district court’s grant of summary judgment to Stratasys. In
coming to that decision, the Eighth Circuit concurred with the district court that
Holaway . . . failed to meet even the relaxed evidentiary standard because he
failed to put forward any evidence of the amount and extent of his work in excess
of forty hours a week for any week worked for Stratasys, let alone evidence of
excess hours worked every week of his employment. Holaway has, instead, put
forth contradictory and bare assertions of his overtime hours worked. At various
times, Holaway has estimated his work hours as between forty-five and seventy
hours a week, yet has failed to specifically account for the hours worked. In fact,
Holaway failed to put forth any evidence regarding specific weeks where he
worked beyond forty hours. Holaway has also failed to provide a meaningful
explanation of how he arrived at his final estimate of sixty hours a week, every
week, of his employment. Holaway provided only vague testimony and failed to
reference specific days and hours worked. This failure includes a failure by
Holaway to check his hours worked against any business records kept by
Stratasys. In his calculations regarding his typical hours worked, Holaway also
failed to take into account any paid holidays, any paid vacation, or any days he
was on duty at home yet never was called out to install or service a printer.
Even taking the evidence in the light most favorable to Holaway, the evidence is
inconsistent and provides no details which would allow a jury to determine
Holaway worked beyond forty hours in any specific week of his employment.
Therefore, Holaway has failed to come forward with “sufficient evidence to show
the amount and extent of [overtime] work” which would allow a fact-finder to
find overtime hours “as a matter of just and reasonable inference.” Anderson, 328
U.S. at 687–88, 66 S.Ct. 1187 (emphasis added).
25
Holaway, 771 F.3d at 1059-60.
The Eighth Circuit issued this decision on November 6, 2014. Stratasys filed its motion
for summary judgment the next day, arguing that Holaway dictates that summary judgment be
awarded to it here because Longlois, like Holaway, has failed to put forth any evidence that he
“worked beyond forty hours in any specific week of his employment.” Id. at 1060.
Understandably, given that Longlois had emphatically chosen to rely on the materials from
Holaway – including by filing his own motion for partial summary judgment and his Daubert
motion on that record – Stratasys tailored its motion to that evidence and did not wait to file it
until the November 15 deadline for fact discovery passed.
However, five days later, and just three days shy of the November 15 discovery deadline,
Longlois served Stratasys with his Third Supplemental Answers to the interrogatories it had
posed to him two years prior during the Holaway litigation. Apparently spurred by the Eighth
Circuit’s emphasis in Holaway that Holaway had offered no “evidence regarding specific weeks
where he worked beyond forty hours” and had failed to “check his hours worked against any
business records kept by Stratasys,” id. at 1059, Longlois purports in the Third Supplemental
Answers to have now done just that. In particular, Longlois’ Third Supplemental Answers
supplement his previous responses by reconstructing seven of his workweeks between 2009 and
2012 based on a large number of contemporaneous business records, including payroll
documents, time sheets, work assignments and calendars, expense reports, and computer log-in
records. For each day in these seven “illustrative” workweeks, Longlois provides a description
of his work activities and tallies the total number of hours he spent performing them. Adding
them up, Longlois asserts that he worked a substantial number of overtime hours – ranging from
18 to 25 – in each one of the reconstructed workweeks.
26
Approximately two weeks after serving Stratasys with this new information, Longlois
filed his memorandum in opposition to Stratasys’ motion for summary judgment. There, on the
issue of his overtime hours, Longlois reiterates the evidence from Holaway that he previously
presented on his own motion for partial summary judgment. Notably, though, Longlois makes
no attempt at all to distinguish those materials from the “vague and general” showing that the
district court and the Eighth Circuit found insufficient in Holaway. However, Longlois also
submits his Third Supplemental Answers. According to Longlois, even if the rest of his
evidence is inadequate, his seven reconstructed workweeks “provide[] the work-related overtime
specificity required” for his claim to survive Stratasys’ motion for summary judgment.
2. Third Supplemental Answers.
Stratasys strongly objects, on several grounds, to any consideration of the contents of
Longlois’ Third Supplemental Answers. For the reasons explained below, the Court agrees with
Stratasys that, consistent with Federal Rules of Civil Procedure 26 and 37, Longlois may not use
his Third Supplemental Answers as evidence.
a. Rule 26(e)(1)(A).
The first consideration is whether Longlois provided Stratasys with his Third
Supplemental Answers in a timely fashion. Federal Rule of Civil Procedure 26(e)(1)(A) requires
[a] party who has made a disclosure [or] responded to an interrogatory [to]
supplement or correct its disclosure or response . . . in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing . . . .
27
The procedural history recounted above makes clear that Longlois’ Third Supplemental
Answers were not a timely “supplement[ation] or correct[ion]” of his prior disclosures and
responses regarding the overtime hours he claims to have worked. Three points from that
sequence of events bear particular emphasis. First, from the time Longlois filed this action in
December of 2013 through briefing on his own dispositive motion, he repeatedly represented that
he had completely and accurately accounted for his claimed overtime hours. Second, only after
Stratasys filed its motion for summary judgment did Longlois attempt to shift the evidentiary
foundation for his claim, and then by supplementing his answers to interrogatories that Stratasys
had posed to him a full two years prior, in November of 2012. See Affidavit of Service,
Holaway v. Stratasys, No. 12-cv-998 (PAM/JSM), ECF No. 83-1 at 23. And third, with that
supplementation, Longlois provided Stratasys with the very information that it had specifically
requested of him, but which he had steadfastly refused to provide, during a series of discovery
disputes in Holaway over the first half of 2013. See Order of June 17, 2013, Holaway v.
Stratasys, No. 12-cv-998 (PAM/JSM), ECF No. 145.
Longlois cannot claim here that the Eighth Circuit’s Holaway decision, which evidently
prompted him to compose his Third Supplemental Answers, renders them timely. Holaway is an
application of, not a departure from, precedent that requires an FLSA plaintiff to put forth
“evidence . . . which would allow a jury to determine [that he] worked beyond forty hours in any
specific week of his employment.” 771 F.3d at 1060. See also Carmody, 713 F.3d at 406
(affirming grant of summary judgment to employer because employees offered no “record
evidence of a single hour worked over forty hours that did not receive overtime wages or
flextime” and their “unsupported estimations of the unpaid hours are not enough”). What’s
more, Longlois’ counsel was personally on notice from the district court’s December 2013 grant
28
of summary judgment to Stratasys that “vague and general ‘approximations’” of a plaintiff’s
overtime hours are inadequate.
In any event, even if Longlois did not recognize the implications that precedent held for
his case until the Eighth Circuit’s Holaway decision, timeliness under Rule 26(e)(1)(A) is
measured from “the date when the facts are discovered, not some nebulous date when counsel
first realized that there was some significance to them.” Havenfield Corp. v. H & R Block, Inc.,
509 F.2d 1263, 1272 (8th Cir. 1975). In this respect, Longlois suggests in his briefing that he did
not receive the contemporaneous business records on which he based his Third Supplemental
Answers until Stratasys itself supplemented the initial disclosures it had made during Holaway
here in September of 2014.
That is not the case. The record demonstrates unequivocally that Stratasys disclosed the
business records in its possession relating to Longlois’ work as an FSE prior to January of 2013
– the period implicated by Longlois’ claim – by, at the latest, June of 2013. See Letter of June
28, 2013, ECF No. 72-12 at 1 (letter from Longlois’ counsel to Stratasys’ counsel evincing that,
as of June 28, 2013, Longlois had been provided with his personnel file, pay stubs, payroll
documents, and computer records); Plaintiff’s Memorandum in Opposition to Defendant’s
Motion for Summary Judgment, ECF No. 71 at 17-18 (citing and explaining the same). The
supplemental disclosures Stratasys made here in September of 2014 only updated its Holaway
disclosures to include records that had been generated after January of 2013, such as Longlois’
2013 payroll records and performance review and documentation relating to his resignation from
the company in August of 2014. Those supplemental disclosures have no bearing on Longlois’
Third Supplemental Answers, which contain reconstructions of seven workweeks between
October of 2009 and November of 2012.
29
In a final effort to justify the timing of his Third Supplemental Answers, Longlois
emphasizes that he provided them to Stratasys “[d]uring the discovery period” provided for by
the Scheduling Order. It is true that Longlois served the document three days before the
November 15 close of fact discovery. That, however, does not render it timely; in fact, Longlois’
handling of the matter violated the discovery provisions of both the Scheduling Order and the
Local Rules of this District.
The Scheduling Order, consistent with Local Rule 16.2(d)(3), specifies that “[a]ll fact
discovery, including depositions, of any kind shall be commenced in time to be completed” by
that deadline. It is evident to the Court, as it clearly was to Longlois himself, that his belated
supplementation did not leave Stratasys with sufficient time to depose him on its contents before
the deadline for doing so expired on November 15. Indeed, Longlois’ counsel has submitted the
emails he exchanged with Stratasys’ counsel immediately after serving the Third Supplemental
Answers, in which he offers to make Longlois available for a deposition after the November 15
deadline. Stratasys’ counsel declined that offer in light of the motions pending before the Court.
The modification of the Scheduling Order that Longlois proposed to Stratasys does not
mitigate the tardiness of his supplementation. In fact, that modification was not within Longlois’
discretion to fashion. The Local Rules require parties to strictly comply with scheduling orders.
And, under Local Rule 16.3, a change to a scheduling order – “even a stipulated or uncontested”
one – may only be granted by the Court upon a motion that “establish[es] good cause for the
proposed modification” and “explain[s] the proposed modification’s effect on any deadlines.”
No such motion was made.
For all of these reasons, Longlois’ Third Supplemental Answers were untimely.
30
b. Rule 37(c)(1).
The second step of the analysis proceeds under Rule 37(c)(1). According to that rule, a
party that fails to “supplement or correct its disclosure or response . . . in a timely manner” as
Rule 26(e) requires “is not allowed to use that information . . . to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
To determine whether exclusion of the information contained in an untimely supplement
is warranted under this rule, the Eighth Circuit has in similar circumstances approved of the use
of a “balancing test” by which the district court is to “evaluate[] the importance of the evidence
to the [plaintiff], the justifications for [his] failure to comply [with the requirements of Rule 26],
the prejudice to the [defendant] if the evidence were allowed to be used, and whether a
continuance would effectively cure the prejudice.” Carmody, 713 F.3d at 405 (citing Citizens
Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994)). Furthermore, if
“striking the [untimely evidence] would be tantamount to dismissal,” the court is to consider
“lesser sanctions” before excluding it. Id. (citing Keefer v. Provident Life and Accident Ins. Co.,
238 F.3d 937 (8th Cir. 2000)).
These considerations weigh in favor of excluding the Third Supplemental Answers. The
information contained in that document is clearly of central importance to Longlois’ claim. With
misclassification established, Stratasys’ liability, and therefore Longlois’ right to recover, turn on
his ability to “prove[] that he has in fact performed work for which he was improperly
compensated and [to] produce[] sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.” Anderson, 380 U.S. at 688. The seven workweeks
Longlois reconstructs in his Third Supplemental Answers, supported by the host of
31
contemporaneous business records on which he purports to base them, would no doubt satisfy
that burden.
This, however, only serves to highlight the absence of any justification for Longlois’
untimely supplementation. No favorable explanation or excuse for Longlois’ failure to provide
such an important piece of discovery at an earlier point in this litigation – or, for that matter, two
years ago in Holaway when it was first requested – is apparent. As discussed above, none of the
justifications that Longlois has suggested – that the Third Supplemental Answers were
assembled in response to the Eighth Circuit’s Holaway decision, that they were based on records
only provided to him in September of 2014, and that they were served on Stratasys before the
discovery deadline – are persuasive.
The fundamental importance of the Third Supplemental Answers to Longlois’ claim also
brings into relief the prejudice that accepting it here would cause to Stratasys. Because of the
late date on which Longlois served the document – after his own summary judgment motion was
fully briefed and after Stratasys’ summary judgment motion was filed – providing Stratasys with
an opportunity to depose him on it would, at a bare minimum, require a motion and a
modification of the Scheduling Order, necessitate another round of briefing on these dispositive
motions, and delay the case’s trial ready date. Such an approach would impose substantial costs
on Stratasys and require the expenditure of additional judicial resources. What it would not do is
place on Longlois the burden for unnecessarily complicating these proceedings, properly hold
him to account for his apparent lack of diligence, or deter future litigants from committing
similar lapses with matters of high evidentiary import.
For these reasons, the Third Supplemental Answers are stricken.
32
3. Lapidus.
That, however, does not necessarily mean that Stratasys is entitled to summary judgment.
Even after the exclusion of the Third Supplemental Answers, the record remaining before the
Court still contains a prime source of detailed information regarding specific overtime hours
worked by Longlois before January of 2013: Neil Lapidus, Stratasys’ expert. As discussed
above in relation to Longlois’ Daubert motion, Lapidus sets forth in his report his analysis and
conclusions regarding the particular activities Longlois engaged in and the specific hours he
worked on a daily basis between 2009 and 2012. The report reflects that, in Lapidus’ estimation,
the contemporaneous business records he reviewed show that Longlois worked more than forty
hours in the vast majority of the weeks during that period. 5
Surprisingly, though, given this content, neither Longlois nor Stratasys addressed
Lapidus’ report at all in their summary judgment briefing. And, when questioned on the issue at
oral argument, Longlois and Stratasys each persisted in the position they took with respect to
Longlois’ Daubert motion. Consequently, the Court is here faced with a curious situation in
5
For the sake of illustration, Lapidus’ report compares with Longlois’ seven reconstructed
workweeks as follows:
Workweek
Lapidus’ report
10/31/2009
Longlois’ Third
Supplemental Answers
61 hours
6/19/2010
60 hours
51.50 hours
6/26/2010
59 hours
52.25 hours
1/1/2011
61 hours
66.25 hours
12/10/2011
65 hours
70.25 hours
10/27/2012
62 hours
Not included
11/3/2012
58 hours
Not included
33
52 hours
which the plaintiff has vigorously attempted to exclude the very evidence that would meet his
burden for him, while the defendant has championed its admission.
In any event, it has been decided that Lapidus’ proposed testimony is admissible. The
Court is consequently free to consider it, see Fed. R. Civ. P. 56(c)(3), and, having already
reviewed it in detail, will do so here. Under the Rule 56 standards, Lapidus’ accounting would
clearly be sufficient evidence on which a jury could both conclude that Longlois did work
overtime hours for which he was not properly compensated and base a finding as to the total
amount and extent of those hours. Summary judgment, of course, is not properly granted to a
defendant where the evidence that may be presented at trial would be sufficient to sustain the
plaintiff’s claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (noting that “summary
judgment should be granted where the evidence is such that it would require a directed verdict
for the moving party”) (internal quotation omitted).
With that said, the Court recognizes that Stratasys, though it designated Lapidus as a
testifying expert, could decide not to call him as a witness at trial. Whether that would deprive
Longlois of necessary evidence, however, has yet to be seen. Longlois could attempt to call
Lapidus to testify in his case in chief. If that were to occur, it would be within the Court’s
discretion to determine whether Lapidus would testify. See Jasty v. Wright Medical Technology,
Inc., 528 F.3d 28, 39 (1st Cir. 2008) (explaining that “a trial court has discretion to decide
whether to require a [damages expert] to testify for an opposing party”); Peterson v. Willie, 81
F.3d 1033, 1037-38 (11th Cir. 1996) (explaining that, where an expert “witness has been
designated as expected to testify at trial,” the decision of whether to “permit[ the expert] to
testify for the opposing party” is “committed to the sound discretion of the district court”);
Ferguson v. Michael Foods, Inc., 189 F.R.D. 408 (D.Minn. Aug. 24, 1999) (concluding that “the
34
balance of interests under Rule 403 weighs heavily against allowing plaintiff to call [defendant’s
medical expert] as a trial witness”). The parties, however, have not addressed this contingency
here.
At bottom, Longlois’ Third Supplemental Answers are not admissible, but Lapidus’
proposed testimony is. The uncertainty surrounding the manner in which Lapidus’ testimony
may be heard at trial, if it will at all, counsels against a grant of summary judgment to either
party here. Both Longlois’ and Stratasys’ motions are therefore denied insofar as they seek
summary judgment around the issue of Longlois’ overtime hours during the time that he was
misclassified as an exempt employee.
C. Damages.
In addition to the questions of whether Longlois was misclassified prior to January of
2013 and, if so, whether he worked overtime hours during that period, the parties also each seek
summary judgment on three discrete issues bearing on damages. With Stratasys’ liability still an
open question as a result of the ruling explained above, consideration of two of those issues –
relating to the statute of limitations and liquidated damages – must be deferred. The third,
however – the proper method for calculating unpaid overtime compensation – warrants some
discussion.
1. Willfulness.
The first premature dispute centers on how far back in time Longlois may reach in his
attempt to recoup unpaid overtime compensation. The FLSA contains a two-tiered statute of
limitations, according to which an
35
action . . . to enforce any cause of action for . . . unpaid overtime compensation . .
. may be commenced within two years after the cause of action accrued, and every
such action shall be forever barred unless commenced within two years after the
cause of action accrued, except that a cause of action arising out of a willful
violation may be commenced within three years after the cause of action accrued .
...
29 U.S.C. § 255(a). See also 29 C.F.R. § 790.21(b)(1) (explaining that a cause of action for
unpaid overtime compensation “‘accrues’ when the employer fails to pay the required
compensation for any workweek at the regular pay day for the period in which the workweek
ends,” and “an action to enforce such a cause of action shall be considered to be ‘commenced’ . .
. [i]n individual actions, on the date the complaint is filed”).
Longlois, of course, seeks a ruling here that a three-year limitations period applies, while
Stratasys contends that two years is proper. However, as the FLSA ties this determination to a
factual finding that the employer has committed a “willful violation” of the FLSA and it has not
been established at this juncture that Stratasys committed any violation, this question cannot be
properly considered here.
Furthermore, there is an additional issue that remains to be resolved in this area, but
which the parties have not addressed. Longlois commenced this action with the filing of his
Complaint on December 5, 2013. However, Longlois had previously “commenced an action” to
assert his rights under the FLSA, as that term is used in the statute of limitations, by opting in to
the Holaway matter after that case was conditionally certified as a collective action in October of
2012, and he participated in it until it was decertified in October of 2013. See 29 C.F.R. §
790.21(b)(2) (“[A]n action to enforce . . . a cause of action shall be considered to be
‘commenced’ . . . [i]n collective or class actions, as to an individual claimant . . . [o]n the . . .
date when his written consent to become a party plaintiff is filed in the court”).
36
These circumstances may warrant equitable tolling of the limitations period, whichever
one is ultimately found to apply. See Smithrud v. City of St. Paul, 746 F.3d 391, 396 (8th Cir.
2014) (explaining that equitable tolling of a statute of limitations “requires a litigant to establish
‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’”) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Jenkins v. Mabus,
646 F.3d 1023, 1028-29 (8th Cir. 2011) (noting that the “doctrine of equitable tolling . . . should
be invoked only in exceptional circumstances truly beyond the plaintiff's control”). The Court
trusts that the parties will address this aspect of the statute of limitations at an appropriate time
before trial.
2. Good faith.
The second premature dispute involves the availability of liquidated damages. In
addition to unpaid overtime compensation, the FLSA provides for a successful claimant to
recover liquidated damages “in an additional equal amount.” 29 U.S.C. § 216(b). Liquidated
damages in this context are not a punitive measure against the employer, but are rather
considered to be compensation “for the delay in payment of wages owed” to the employee.
Chao v. Barbeque Ventures, LLC, 547 F.3d 938, 941 (8th Cir. 2008) (internal quotation omitted).
However, the FLSA also provides that
if the employer shows to the satisfaction of the court that the act or omission
giving rise to [the employee’s] action [for unpaid overtime compensation] was in
good faith and that [the employer] had reasonable grounds for believing that his
act or omission was not a violation of the [FLSA], the court may, in its sound
discretion, award no liquidated damages or award any amount thereof not to
exceed the amount specified in section 216 of this title.
29 U.S.C.A. § 260.
37
Unlike the willfulness of the employer’s violation of the FLSA for statute of limitations
purposes, which is a question of fact committed to the jury, the employer’s good faith is for the
Court to decide. 6 Accordingly, Longlois urges the Court to find here that Stratasys did not act in
good faith when it misclassified Longlois as exempt. But with Stratasys’ liability an open
question for trial, this issue too is not ripe for adjudication.
3. Regular rate of pay.
The third and final issue relating to damages on which the parties seek summary
judgment is the question of how to compute the unpaid overtime compensation that Longlois
could recover if he were to prevail on his claim. Though the relevance of this issue too is
predicated on Longlois establishing Stratasys’ liability at trial, the parties’ arguments lend
themselves to a more substantive treatment here.
The FLSA mandates that a non-exempt employee receive compensation for any overtime
hours worked “at a rate not less than one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). “The employee’s ‘regular rate’ is . . . the ‘keystone’” of this
requirement. Urnikis–Negro v. Am. Fam. Prop. Servs., 616 F.3d 665, 673 (7th Cir. 2010)
(quoting Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)). However,
determining what that regular rate would have been for Longlois during the time that he was
misclassified is somewhat complicated by the fact that he received a salary, rather than an hourly
rate.
6
Nevertheless, owing to the similarity between the inquiries into the willfulness of the
employer’s violation and its good faith, the results will most often be consistent. Jarrett, 211
F.3d at 1084 (“Though we decline to go so far as to rule out the possibility of good faith and
willfulness in an unusual case, we conclude that a district court’s finding of employer good faith
in the face of a jury’s presumptively contrary finding of willfulness requires close scrutiny on
appeal.”).
38
Longlois argues that, for each overtime hour he worked, he is entitled to receive one-andone-half times his regular rate of pay, as calculated by dividing his weekly salary by forty hours.
Stratasys, however, contends that the fluctuating workweek (“FWW”) method applies here.
Under that approach, Longlois’ regular rate of pay would be calculated by dividing his weekly
salary by the total number of hours he actually worked in a given week, rather than by forty. Id.
at 674. Because by this method the employee is thus deemed to have already been paid his
“regular rate” for all of the hours he worked in a particular week – including any overtime hours
– he would be entitled to an overtime premium equal to “only one-half of the regular rate for
those [overtime] hours rather than time plus one-half.” Id. at 675.
The Supreme Court addressed the question of how the regular rate of pay is to be
determined for a salaried employee in Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S. 572
(1942) superseded on other grounds by statute as stated in Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 128 n.22 (1985). There, the Court explained that “[w]age divided by
hours equals regular rate,” and that “[w]here the employment contract is for a weekly wage with
variable or fluctuating hours the same method of computation produces the regular rate for each
week.” Id. at 580. Following Missel, the Eighth Circuit articulated its holding as follows:
In the case of an employee hired at an hourly wage, no computation is necessary
to determine his regular rate of pay. His regular rate of pay is established by his
contract of employment[.] In such a case the employee is entitled under the Act
to receive for all hours worked in any week in excess of forty compensation at the
rate of one and one-half times his contract hourly wage. In the case of an
employee hired on a weekly basis for a definite weekly compensation, a
computation is necessary in order to determine his regular rate of pay. If, by his
contract of employment, he is hired on a fixed weekly salary for a workweek of a
fixed number of hours, his regular rate of pay is determined by dividing the
agreed weekly compensation by the agreed number of hours in the week for
which the compensation is paid. If his employment is for a fixed weekly
compensation for a week of variable or fluctuating hours, the employee's regular
rate of pay must be determined by dividing his fixed weekly compensation by the
number of hours actually worked in any workweek; and in cases of employment
39
at a fixed weekly compensation for a workweek of fluctuating hours, the regular
rate of pay of an employee will necessarily vary from week to week according to
the number of hours worked.
Landreth v. Ford, Bacon & Davis, 147 F.2d 446, 448 (8th Cir. 1945). See also Mumbower v.
Callicott, 526 F.2d 1183, 1187 (8th Cir. 1975) (“For employees paid weekly, absent explicit
proof of a mutual agreement for a rate of pay capable of delineation in hourly terms, the court
must infer that the ‘regular rate’ is substantially that calculated by dividing the total weekly
compensation by the number of hours scheduled in the workweek.”). Furthermore, the Eighth
Circuit has used the FWW method to calculate the amount of unpaid overtime compensation
owed to a plaintiff in a misclassification case such as this. See, e.g., Landreth, 147 F.2d at 44849; Anderson v. Federal Cartridge Corp., 156 F.2d 681, 685 (8th Cir. 1946). Other circuits have
also done so more recently. E.g., Urnikis–Negro, 616 F.3d at 681-82. 7
Therefore, the FWW will apply under Missel if, in his work as an FSE prior to January of
2013, Longlois’ weekly salary was “intended to compensate [him] not for 40 hours per week or
some other fixed number of hours, but for any and all hours that [he] worked in a given week.”
Id. at 681. On this question of fact, “[t]he parties’ initial understanding of the employment
arrangement [and] the parties’ conduct during the period of employment must both be taken into
account . . . .” Black, 732 F.3d at 499.
7
After the Supreme Court’s Missel decision, the Department of Labor promulgated 29
C.F.R. § 778.114, an interpretive rule that “explains how and under what circumstances an
employer may compensate an employee using the FWW method.” Urnikis-Negro, 616 F.3d at
677-78. The Seventh Circuit, characterizing § 778.114 as “forward-looking” and “nonremedial,”
determined in Urnikis-Negro that that rule may not be applied to retrospectively calculate the
regular rate of pay of a misclassified employee. Id. at 678-79. However, the court found that the
FWW method itself, under Missel, should be, so long as “the employer and the employee [did] in
fact agree[] that a fixed weekly salary w[ould] constitute payment at the regular rate for any and
all hours worked.” Id. at 679-80.
This approach to the FWW in a misclassification case has been adopted in this District,
Ahle v. Veracity Research Co., 738 F.Supp.2d 896, 918-19 (D.Minn. 2010), and endorsed by
other circuit courts, e.g., Black v. SettlePou, P.C., 732 F.3d 492, 496-99 (5th Cir. 2013). The
Court finds it applicable here.
40
On this issue, neither party has shown the absence of a genuine dispute of material fact.
Longlois argues that the FWW does not apply here because, “[p]rior to December 2012, FSEs
including Longlois had no understanding with their employer Stratasys that they would receive a
fixed weekly salary regardless of the amount of times they worked over a 40-hour workweek.”
However, the only evidence Longlois offers for that proposition is an email that Holaway sent to
his fellow FSEs in February of 2012 expressing his view that FSEs were expected to work up to
60 hours per week “because Stratasys has decided not to hire sufficient people to do the job” and
stating that “I for one am done with the extra hours. I am paid for 40 hours per week and will
give 40 hours per week but I am not willing to donate any more time than that.” Despite the
clarity of Holaway’s position, the question for this case is the understanding that Longlois and
Stratasys reached regarding Longlois’ salary. Longlois offers no evidence that he, much less
Stratasys, shared Holaway’s perspective on the matter.
For its part, Stratasys neglects the central issue entirely. It rests its argument that the
FWW should apply in this case solely on the undisputed fact that Longlois was paid a salary,
while failing to point to any evidence bearing on whether that salary was intended to compensate
Longlois for a fixed or variable number of hours each week.
On this issue, then, neither party is entitled to summary judgment.
Conclusion
Longlois’ Daubert motion is granted with respect to Alexander Passantino and denied
with respect to Neil Lapidus. On the parties’ summary judgment motions, summary judgment is
granted to Longlois on the issue of misclassification. In addition, Longlois’ Third Supplemental
Answers are excluded from the record. All other issues remain open for resolution at trial.
41
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Plaintiff’s Motion for Summary Judgment on Defendant’s Affirmative Defenses [ECF
No. 43] is GRANTED IN PART and DENIED IN PART consistent with the
memorandum above.
2. Plaintiff’s Motion to Exclude Expert Testimony [ECF No. 48] is GRANTED IN PART
and DENIED IN PART consistent with the memorandum above.
3. Defendant’s Motion for Summary Judgment [ECF No. 65] is DENIED.
Dated: February 24, 2015
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
42
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