Sutton-Price et al v. Daugherty Systems, Inc.

Filing 97

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs renewed motion to conditionally certify FLSA collective action [Doc. # 86 ] is denied. IT IS FURTHER ORDERED that defendants motion to strike [Doc. # 91 ] is moot. Signed by District Judge Carol E. Jackson on 12/13/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHERRY SUTTON-PRICE and JEANNA
STAHLS, on behalf of themselves and
all others similarly situated,
Plaintiffs,
vs.
DAUGHERTY SYSTEMS, INC.,
Defendants.

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Case No. 4:11-CV-1943 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ renewed motion to conditionally
certify a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §
216(b). Defendant has filed a response in opposition and a motion to strike. All issues
are fully briefed.
I.

Background

Plaintiffs Sherry Sutton-Price and Jeanna Stahl are, respectively, current and
former employees of defendant Daugherty Systems, Inc. (Daugherty). They allege on
behalf of themselves and others similarly situated that Daugherty violates the FLSA by
incorrectly classifying them as exempt, thereby avoiding paying them overtime.
Defendant Daugherty provides two categories of software services to large
corporations.

The “consulting” services develop specific software solutions for

individual clients. The “Mobile Solutions Group” supports a specific software product
called Mobility for Anheuser-Busch InBev.
subdivisions.

The Mobile Solutions Group has two

The Development subdivision makes improvements to the Mobility

software while the Support subdivision provides support services to wholesalers using
the Mobility software. Plaintiffs Sutton-Price and Stahl both worked in the Support

subdivision of the Mobile Solutions Group.

Sutton-Price worked on the “Tier 2

Helpdesk,” a call center for the wholesalers. Her duties consisted of providing call
center support to correct hardware and software problems; troubleshooting network
connectivity issues; and installing, configuring, testing and troubleshooting computer
applications, networks and hardware. Stahl’s duties including providing telephone
support for clients and on-site training to wholesalers in implementing the Mobility
software.
On January 4, 2013, plaintiffs moved to certify a class of employees, in both the
consulting services and the Mobile Solutions Group, with the job title “Consultant.”
Plaintiffs claimed that all consultants perform basic IT troubleshooting, configuration,
and general consulting duties. On July 1, 2013, the Court denied plaintiffs’ motion.
The Court found that plaintiffs failed to establish that employees outside the Mobile
Solutions Support subdivision performed work substantially similar to the work the
plaintiffs performed. Defendant suggested that it might be appropriate to certify a
class of employees who worked in the Mobile Solutions Group on the Tier 2 Helpdesk
and Installation Team. The Court declined to address this proposal because plaintiffs
had not requested alternative relief.
On August 5, 2013, the Court held a Rule 16 scheduling conference to develop
a case management order for disposition of the individual claims. In the course of the
conference, counsel for plaintiffs stated that they were contemplating filing another
motion for conditional certification. That possibility was not addressed in the parties’
joint proposed scheduling plan -- indeed, defense counsel states it was never
mentioned in discussions with plaintiffs’ counsel -- and the Court made no provision
for an additional class certification motion in the case management order.

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On September 17, 2013, plaintiffs filed this renewed motion for the conditional
certification. They seek to certify a class of Mobile Services employees who performed
duties in the following roles or titles: Product Specialist, Technical Analyst, Senior
Technical Analyst, Implementation Specialist, Data Analyst, Business Analyst, Software
Engineer, and Quality Analyst. The proposed class includes employees in both the
Development and Support subdivisions.
II.

Discussion

Defendant argues that plaintiffs’ renewed motion should be struck under the
“law of the case” doctrine and as untimely. In the alternative, defendant argues that
the motion fails on the merits.
The doctrine of the law of the case prevents the relitigation of settled issues in
an action, thus protecting the expectations of the parties, ensuring uniformity of
decisions and promoting judicial efficiency. UniGroup, Inc. v. Winokur, 45 F.3d 1208,
1211 (8th Cir. 1995). The doctrine does not apply to interlocutory orders, which can
be reconsidered and modified prior to entry of a final judgment. Gander Mountain Co.
v. Cabela’s, Inc., 540 F.3d 827, 830 (8th Cir. 2008). This case is not yet final and so
the “law of the case” doctrine does not apply.
Defendant also argues that the motion is untimely. On July 16, 2012, the Court
entered a case management order for class discovery and certification. Under that
order, the deadline for filing a class certification motion was no later than October 12,
2012. Upon joint requests by the parties, that date was extended first to November
30, 2012, and finally to January 4, 2013, when the first certification motion was filed.
Defendant argues that before filing a renewed motion for conditional certification,
plaintiffs were required to show good cause for modifying the original case
management order under Fed.R.Civ.P. 16(b)(4). Plaintiffs respond that their motion
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is not untimely under the current Case Management Order and decline to address
defendant’s “good cause” argument.
The Court agrees with defendant that plaintiffs’ motion is untimely, not
necessarily for violation of Rule 16, but under more general principles of judicial
economy and fairness. Plaintiffs have been in possession of all relevant discovery since
they filed their first motion. They could have requested certification of a narrower
class as an alternative in their original motion or in response either to the defendant’s
suggestion that a narrower class was appropriate or to the order denying certification.
Finally, plaintiffs filed a joint proposed scheduling plan that included no provisions for
another class certification motion. Plaintiffs offer no explanation for their failure to
take any of these opportunities to seek the certification they now propose. Allowing
their motion to go forward at this time will cause significant delay in resolution of this
case.
In addition, the new proposed class suffers from the same weaknesses as the
original

proposed class.

Plaintiffs are required to show that employees in the

proposed class performed similar duties. See Halsey v. Casino One Corp., 4:12CV1602
CDP, 2012 WL 6200531, at *3 (E.D. Mo. Dec. 12, 2012).

The Court previously

determined that employees in the Development and Support subdivisions do not
perform similar duties.

Plaintiffs now argue that employees in both subdivisions

perform similar “support” duties.

“‘Installing, maintaining, and/or supporting

computer hardware and/or software’ could include both a low-level technician who
checks whether computers are switched on and a programmer who writes software
patches involving complex cryptographic code.” Cunningham v. Electronic Data Sys.
Corp., 754 F. Supp. 2d 638, 650 (S.D.N.Y. 2010).

A generic statement of job

functions that creates an overbroad category is not permitted under the similarly-4-

situated analysis. Villareal v. St. Luke’s Episcopal Hosp., 751 F. Supp. 2d 902, 919
(S.D. Tex. 2010). “While slight differences in job duties or functions do not run afoul
of the similarly-situated requirement, significant variation of job duties among
potential class members means that class certification should not be granted.” Id.
(citation omitted).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ renewed motion to conditionally certify
FLSA collective action [Doc. #86] is denied.
IT IS FURTHER ORDERED that defendant’s motion to strike [Doc. #91] is
moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this13th day of December, 2013.

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