SLOANE v. GULF INTERSTATE FIELD SERVICES, INC

Filing 192

MEMORANDUM (Order to follow as separate docket entry) re 141 MOTION to Facilitate Notice and for Certification of a Nationwide Collective Action and 142 MOTION to Certify Class filed by Thomas Sloane. Signed by Honorable Matthew W. Brann on 3/24/2017. (jn)

Case 4:16-cv-01571-MWB Document 192 Filed 03/24/17 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS SLOANE, individually
and on behalf of all persons
similarly situated,
Plaintiff,
v.
GULF INTERSTATE FIELD
SERVICES, INC.,
Defendant.

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No. 4:16-cv-01571
(Judge Brann)

MEMORANDUM
March 24, 2017
I.

INTRODUCTION
“This is the second attempt by the same counsel to seek certification of a

collective action wage and hour lawsuit on a nationwide basis against Gulf
Interstate Field Services (GIFS). The first attempt failed.”1 As might be expected,
this second-chance effort has fared no better than the first. “Put simply, the old
adage that ‘if at first you don’t succeed, try again’ does not apply to litigation in
federal court.”2

1

Def.’s Br. in Opp. to Pl.’s Mot. for Conditional Certification, ECF No. 156 at 8.

2

Boone v. United States, No. 02-CR-1185 (JMF), 2017 WL 398386, at *2 n.1 (S.D.N.Y. Jan.
30, 2017).

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This Fair Labor Standards Act case was brought on behalf of a putative class
comprised of natural gas pipeline inspectors. In essence, the class members allege
that they were paid a day rate with no accounting for overtime worked. Numerous
features of this litigation are fatal to the class’s success: (1) significant disparities
exist among the putative class members, their worksites, their responsibilities, and
their clients—there is no common thread; (2) individualized inquiries as to the
applicability of certain exemptions would overwhelm collective resolution;
(3) applicable payroll records reveal that they were likely paid a salary; and (4) the
pay letters at issue are at worst ambiguous and at best clarify that the workers
actually received a salary guarantee.
Moreover, I observe from the outset that this is not a putative class
comprised of minimum wage earners who perform rote tasks in less than ideal
conditions. This is a class of professional pipeline inspectors—one of whom took
home an annualized salary of $140,500—that nevertheless now seek to utilize the
FLSA’s overtime provisions to obtain additional pay they claim they are owed.
Counsel for Plaintiff has already failed to obtain nationwide certification in a
related matter pending before the United States District Court for the Southern
District of Ohio. In fact, not only was certification of a collective action denied in
part, but summary judgment was eventually granted in GIFS’s favor in that case.

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A few months later and following a radio campaign that sought to recruit
potential gas workers to serve as class members, that same counsel arrived at this
Court’s doorsteps, armed with a new class representative but the same old theory.3
Technically speaking, they first arrived at a neighboring district from which
counsel for Plaintiff had recently won a favorable judgment in another case.4
Regardless, when the court in that district realized in July 2016 that venue was
nonexistent, the case was swiftly punted to this Court. Venue, as it turns out, was
improper in that district because the lone putative class member from Pennsylvania
had never even worked in one of the counties that comprise that forum.
This Court held a telephonic status conference on August 29, 2016, at which
time a formal briefing and oral argument was scheduled on the pending motions
for conditional certification under 29 U.S.C. § 216(b) and class certification under
Federal Rule of Civil Procedure 23. That conference followed a letter from
Veronica Saltz, Esquire, counsel for Defendant, which both informed the Court of

3

See Transfer Memorandum, ECF No. 136 at 8 (Fischer, J.) (“Sloane became involved in this
matter after hearing a radio advertisement several times during the period of March through
August of 2015 when he was working in the Corpus Christi, Texas area for another
employer. He confirmed that the radio advertisement told listeners that they may be entitled
to unpaid overtime compensation under the FLSA if they were paid a ‘day rate.’ The
advertisement directed listeners to contact Bruckner Burch PLLC if they desired to pursue a
claim.”).

4

Hively v. Allis-Chalmers Energy, Inc., No. CIV.A. 13-106, 2013 WL 5936418, at *8 (W.D.
Pa. Nov. 5, 2013) (Fischer, J.).

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the parallel Ohio action and expressed skepticism that this case could be
meaningfully distinguished from that one.
This Court held a day-long oral argument on November 21, 2016. For all of
the distance it seems we must have traversed, we have had to endure, we still find
ourselves at the same place where we began. For the reasons set forth below,
Plaintiffs have fallen well short of satisfying their burdens under the Fair Labor
Standards Act as well as Federal Rule of Civil Procedure 23. Accordingly, both
certification motions are denied, and the putative opt-in Plaintiffs are dismissed
with prejudice.
II.

BACKGROUND
A.

Significant Variance Is Present Among GIFS’s Inspectors,
Clients, Worksites, Job Responsibilities, Discretion, And Projects.

GIFS staffs its clients’ projects with many different types of inspectors,
including: Chief Inspectors, Assistant Chief Inspectors, COR Inspectors, Corrosion
Inspectors, Electrical and Instrumentation Inspectors, Environmental Inspectors,
Safety Inspectors, Utility Inspectors, Welding Inspectors, and Coating Inspectors.5
Each type of inspector possesses different qualifications and expertise, and
performs different job duties.6 Nevertheless, Plaintiffs seek certification of
collective action generically comprising “all current and former employees of
5

ECF No. 156 at 12.

6

Id.

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[GIFS] who performed work as a pipeline inspector in the United States in any
workweek between three years prior to the date of the Court’s Order and the
present.”7 The proposed class otherwise embraces no limitations based on
geography, timeframe, client, position type, or project nature, though it does
incorporate a carve-out for three separate projects where employees are believed
not to have suffered any unlawful treatment.8
Since 2011, GIFS has staffed approximately 2,275 employees with over 40
clients across at least 35 states, both on- and off-shore.9 As Robert J. Sprick, the
company’s Senior Vice President, testified, “[t]he number and type of jobs staffed
by [GIFS] on any particular project also varies considerably from project to
project, client to client, and over time.”10 This means that “similarly titled jobs, like
‘pipeline inspector,’ often entail different job duties from project to project, as each
client sets the job duties for each [GIFS] employee on its projects.”11
GIFS “generally has no authority to direct the tasks performed by its
employees on its clients’ respective projects, or control when or how such tasks are
performed.”12 Instead, GIFS’s clients “generally assign work to [GIFS’s]
7

ECF No. 141 at 1.

8

See id.

9

Sprick Feb. 20, 2015 Decl., ECF No. 99 Ex. 7 ¶ 6.

10

Id. ¶ 9.

11

Id. ¶ 10.

12

Id. ¶ 11.

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employees, and [GIFS’s] employees exercise various levels of discretion and
independent judgment in performing their assigned tasks.”13 “Job duties also may
vary depending upon the portion of a particular project that an employee is
assigned, as conditions can vary at different parts of a worksite.”14
Because GIFS is a staffing company, its inspectors’ relative positions in the
organizational structure is client-dependent.15 As stated, “inspectors are staffed for
each particular project according to the needs of GIFS’s clients,” and
“[s]upervision of inspectors may differ on a project-by-project basis depending
upon the individual supervisor assigned by the client.”16 Accordingly, GIFS’s
various clients, not GIFS, “control[ ] each staffed employee’s work schedule,
whether the job site is open for work on any particular day, and any applicable sick
leave and vacation policies.”17
B.

The Hughes Court Rejects Counsel For Plaintiff’s Day Rate
Theory In A Nearly Identical Action In The Neighboring State Of
Ohio.

In 2014 and before this case’s inception, counsel for Plaintiffs filed a
strikingly similar complaint in the United States District Court for the Southern
District of Ohio. That case was captioned Hughes v. Gulf Interstate Field Servs.,
13

Id.

14

Id. at 10.

15

ECF No. 156 at 12.

16

Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 8.

17

Sprick 2015 Decl. ¶ 16.

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Inc., and it involved nearly identical allegations, save for the differences
occasioned by the application of Ohio state law to the plaintiffs’ pendent claims.18
In particular, the Ohio lawsuit alleged that GIFS paid its inspectors a day rate.19
Counsel for Plaintiffs’ geographical blunders (or creativity) have
unfortunately been featured as a common theme in their litigation against GIFS.
Importantly, though, there is something obviously proper to be said for Plaintiff’s
counsel having taken their first bite at the apple in the buckeye state—after all,
that’s where the named and opt-in plaintiffs in Hughes actually worked.
The telling nature of that initial choice of venue will come into play again
later in my discussion, but suffice it to say for now that the Ohio action was a
failed endeavor. In fact, the Honorable Edmund A. Sargus, Jr., determined that the
plaintiffs could not even “make a modest factual showing” that a nationwide
collective should be certified.20 Because all five of the opt-in plaintiffs were culled
from the MarkWest Ohio project, Judge Sargus did conditionally certify a class
consisting only of those inspectors who worked at that lone Ohio job site.21 As to
the motion for conditional certification, he concluded that “Plaintiffs submit no

18

S.D. Ohio Docket No. 2:14-cv-00432.

19

Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-000432, 2015 WL 4112312, at *1
(S.D. Ohio July 7, 2015).

20

Id. at *3.

21

Id. at *3–4.

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sufficient evidence to support a conditional class outside of the Markwest Ohio
Project.”22
At the same time, Judge Sargus also denied Plaintiffs’ motion for
certification under Rule 23. He reasoned as follows:
The applicability of each of these exemptions involve fact-specific
inquiries regarding an employee’s specific job duties—whether
management, business-operations, office or nonmanual etc.; the
independent judgment exercised in the performance of said duties, the
percentage of time devoted to each duty; and the supervisory capacity,
if any, of each employee. While Plaintiffs’ employee affidavits touch
on the answers to some of these questions as they pertain to the
individual affiants, Plaintiffs have not satisfied their burden of
demonstrating that all individuals in the proposed class would have
common answers, such that a determination of whether these
exemptions apply is capable of classwide resolution.23
Approximately one year later, GIFS moved for summary judgment as to
Plaintiffs’ FLSA claims, and summary judgment was granted. Like the matter sub
judice, summary judgment in Hughes turned on the applicability of a number of
the FLSA’s regulatory exemptions.24 Those exemptions depended upon whether
GIFS’ employees were “paid on a salary basis.”25
Judge Sargus relied on Sixth Circuit precedent for the proposition that
“employment agreements are no longer the relevant starting point for whether an
22

Id. at *3.

23

Id. at *6.

24

Id. at *3.

25

Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-000432, 2016 WL 4197596, at *4
(S.D. Ohio Aug. 8, 2016).

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employee is paid on a salary basis.”26 The motivation behind such a rule is that
what controls is not what the employee was owed, but what he actually received.27
“It is not written descriptors of the payment policies that are relevant to the salarybasis test inquiry, but rather the actual payment practice,” Judge Sargus
concluded.28 Thus, because the plaintiffs in Hughes “were actually paid the
requisite amount to satisfy the FLSA’s salary-basis requirement,” the exemptions
applied, and summary judgment was appropriate.29
C.

This Case Is Transferred To This District, And Oral Argument
On Both Certification Motions Is Heard.

The present matter was initiated in the Western District of Pennsylvania on
September 16, 2015. Plaintiffs filed their motion for conditional certification and to
facilitate notice pursuant to 29 U.S.C. § 216(b) on April 8, 2016. The Honorable
Nora Barry Fischer, to whom the case was assigned at that time, heard oral
argument as to that motion on May 26, 2016. Later, Plaintiffs motion for class
certification pursuant to Federal Rule of Civil Procedure 23 was filed on June 27,
2016. The matter was transferred in its entirety to the undersigned on July 29,
2016. This Court conducted a telephonic status conference call on August 29,
2016, at which time it finalized the remaining deadlines for responsive briefing on
26

Id. at *4.

27

Id.

28

Id.

29

Id.

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Plaintiffs’ Rule 23 certification motion. Thereafter, oral argument as to both
motions was held on November 21, 2016.
D.

The Named Plaintiffs And Opt-in Plaintiffs Exhibit Significant
Variance In Terms Of Their Employment.

This section provides a brief factual comparison of several central factors
about the named Plaintiff and the five opt-in Plaintiffs on whose behalf verified
consent forms have been filed on the ECF docket. I list the opt-in plaintiffs in the
order in which each’s notice of consent to opt-in was electronically filed by
Plaintiff’s counsel on the Court’s docket.
1.

Named Plaintiff: Thomas Sloane

In early 2014, Kinder Morgan hired GIFS to staff inspectors on a
compressor station expansion project along a natural gas pipeline in Wyalusing,
Bradford County, Pennsylvania.30 That compressor station is referred to internally
as “Station 319.”31 GIFS sent eight inspectors, including Mr. Sloane, to the Station
319 project.32 That project began in early January 2014 (although Mr. Sloane’s
work there did not begin until April 2014).33 His work on that project ended in

30

Robert J. Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 23.

31

Id.

32

Id.

33

Id.

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September 2014.34 Thereafter, Mr. Sloane worked for approximately one month on
an unrelated project for the same client in Oklahoma.35
2.

Opt-in Plaintiff #1: Allen Hinkle

Mr. Hinkle worked for GIFS from approximately August 2012 through
December 2012 as a Welding Inspector in West Virginia on a project for
MarkWest Liberty Midstream & Resources, LLC.36 He then worked for GIFS from
approximately October 2013 through March 2014 as a Welding Inspector in
Missouri on a project for Enbridge Energy Partners, L.P.37
3.

Opt-in Plaintiff #2: Justin Bish

Mr. Bish worked for GIFS from approximately June 2011 through October
2013 as a Utility Inspector in West Virginia on a project for MarkWest Liberty
Midstream & Resources LLC.38 From approximately October 2013 through
February 2014 he worked for GIFS as an Assistant Chief Inspector in West
Virginia on a second project for that same client.39 Finally, from approximately

34

Id.

35

Catherine Kramer May 6, 2016 Supp’l Decl., ECF No. 99 Ex. 6 ¶ 4.

36

Hinkle Apr. 4, 2016 Decl., ECF No. 85 Ex. 23 ¶ 4.

37

Id. ¶ 3.

38

Bish Apr. 4, 2016 Decl., ECF No. 85 Ex. 24 ¶ 4.

39

Id. ¶ 3.

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February 2014 through March 2014, he worked with GIFS as an Assistant Chief
Inspector in Ohio on a project for MarkWest Energy Partners, L.P.40
4.

Opt-in Plaintiff #3: Richard Stapleman

Mr. Stapleman first worked for GIFS from approximately October 2013
through December 2013 as a Quality Control Inspector in Arizona on a project for
Kinder Morgan.41 He then worked for GIFS from approximately March 2015
through April 2015 as a Chief Inspector in New Mexico on a project for Kinder
Morgan.42 He next worked for GIFS from approximately April 2015 through May
2015 as a Chief Inspector in Texas on a project for Kinder Morgan.43 Finally, he
worked for GIFS from approximately May 2015 through June 2015 as a Chief
Inspector in Arizona on a project for Kinder Morgan.44
5.

Opt-in Plaintiff #4: Rodney LaLonde

Mr. LaLonde first worked for GIFS from approximately March 2012
through May 2012 as a Field Engineer in West Virginia on a project for MarkWest
Energy Partners, LP.45 He worked on that same project from approximately May

40

Id. ¶ 2.

41

Stapleman Apr. 7, 2016 Decl., ECF No. 85 Ex. 25 ¶ 6.

42

Id. ¶ 5.

43

Id. ¶ 4.

44

Id. ¶ 3.

45

LaLonde Apr. 7, 2016 Decl., ECF No. 85 Ex. 26 ¶ 4.

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2012 through September 2013 as a Chief Inspector.46 He then worked for GIFS
from approximately September 2013 through September 2014 as a Chief Inspector
in Ohio on a project for MarkWest.47 Shortly thereafter, he worked for GIFS from
approximately February 2015 through June 2015 as an Assistant Chief Inspector in
New York on a project for the Williams Companies, Inc.48 Then, he worked for
GIFS from approximately June 2015 through July 2015 as an Environmental
Inspector in Virginia on a project for Williams Companies, Inc.49
6.

Opt-in Plaintiff #5: Buggs Pollett

Mr. Pollett worked for GIFS from approximately May 2014 through October
2015.50 During that period, he served as a Utility Inspector for the Gulf South
Pipeline Company (Boardwalk).51 Mr. Pollett was also employed as a Welding
Inspector in Mississippi on a Panhandle Energy project for a period of time
beginning in or around June 2012.52

46

Id. ¶ 3.

47

Id. ¶ 5.

48

Id. ¶ 6.

49

Id. at ¶ 7.

50

Pollett Opt-in Consent Form, ECF No. 75.

51

See Pollett June 7, 2012 & June 17, 2014 Pay Letters.

52

See id. See also Pollett June 7, 2012 & June 17, 2014 Pay Letters.

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7.

Summary

The below table is adapted from a similar one submitted by Plaintiffs’
counsel. It summarizes the named and opt-in plaintiffs’ job sites, time worked, job
titles, and clients:
Table 1. Comparison of the Named and Opt-in Plaintiffs
Name
Thomas Sloane

Allen Hinkle

Time Worked
April 2014October 2014
August 2012December
2012;
October 2013March 2014

States
Worked

Job Title(s)

Client(s)

OK, PA

Welding
Inspector

Kinder
Morgan

MO, WV

Welding
Inspector

Enbridge;
MarkWest

Justin Bish

June 2011March 2014

OH, WV

Richard
Stapleman

October 2013December
2013;
March 2015June 2015

AZ, NM,
TX

Rodney
LaLonde

March 2012September
2014;
February 2015June 2015

NY, OH,
WV

Buggs Pollett

June 2012;
May 2014October 2015

MS

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Assistant
Chief
Inspector;
Utility
Inspector
Chief
Inspector;
Quality
Control
Inspector
Chief
Inspector;
Assistant
Chief
Inspector;
Field
Inspector
Welding
Inspector;
Utility
Inspector

MarkWest

Kinder
Morgan

MarkWest;
Williams

Panhandle
Energy; Gulf
South
Pipeline

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III.

LAW
In an FLSA case brought on behalf of a putative class, the district court

typically evaluates the propriety of certification at two junctures. How closely the
court must scrutinize the proposed class each time depends upon whether
discovery has yet been made available to the plaintiff. Thus, although district
courts apply a less searching standard initially, once discovery is had, any
presumption of leniency recedes, and the plaintiff is held to a more demanding
burden. In sum, from the plaintiff to whom much discovery is given, much proof is
expected in return.
“Although this two-step approach is nowhere mandated, it appears to have
garnered wide acceptance,” including by the United States Court of Appeals for the
Third Circuit and those lower courts within its purview.53 In fact, in its leading
2012 decision Zavala v. Wal-Mart Stores, Inc., the Third Circuit retraced the
contours of this two-tier process and “affirm[ed] its use” for FLSA collective
action cases going forward.54
The initial stage typically involves a request for conditional certification.
“[B]ecause discovery has not yet occurred, courts do not review the underlying

53

Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011) (Scirica, J.).

54

Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

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merits of the action in deciding whether to conditionally certify the class.”55
Instead, the plaintiff need only make a “modest factual showing—something
beyond mere speculation” to obtain conditional certification.56 This framework
recognizes that conditional certification “is not a true certification, but rather an
exercise of a district court’s discretionary authority to oversee and facilitate the
notice process.”57 In particular, the “sole consequence” of conditional certification
is the issuance court-approved notice to potential class members.58
“At the conclusion of discovery . . . the court then makes a second
determination, utilizing a stricter standard of ‘similarly situated.’”59 This second,
more probing stage is where the rubber meets the road for FLSA collective actions.
“[P]laintiffs must satisfy their burden at this second stage by a preponderance of
the evidence.”60 A showing that opt-ins are similarly situated to the named plaintiff
is “impossible unless Plaintiffs can at least get over the line of ‘more likely than
not.’”61 “Relevant factors include (but are not limited to): whether the plaintiffs are
employed in the same corporate department, division, and location; whether they
55

John v. Nesco Serv. Co., No. 4:15-CV-253, 2016 WL 7757388, at *2 (S.D. Tex. June 10,
2016).

56

Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224 (3d Cir. 2016) (Smith, C.J.).

57

Id. (citing Hoffman–La Roche v. Sperling, 493 U.S. 165 (1989)).

58

See Halle, 842 F.3d at 224.

59

Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102–03 (10th Cir. 2001).

60

Id. at 537.

61

Id.

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advance similar claims; whether they seek substantially the same form of relief;
and whether they have similar salaries and circumstances of employment.”62
“Plaintiffs may also be found dissimilar based on the existence of individualized
defenses.”63
Although a motion to decertify typically attends this stage, what sets the
second step apart from the first is the existence of discovery dispositive to the
ultimate issues. In fact, the Third Circuit in Zavala referred to the second step as
the “post-discovery stage.”64 Accordingly, district courts in this circuit have
applied an intermediate standard to the “similarly situated” inquiry if the parties
have already engaged in discovery.65 Courts have held this intermediate standard to
require “some factual showing that the similarly-situated requirement is satisfied,”
“as a result of the discovery as measured against the original allegations and
defenses.”66
As one district court recognized, applying the intermediate approach helps
“the Court [to] make an educated decision as to whether certifying this matter as a

62

Id. at 536–37.

63

Id. at 537.

64

Zavala, 691 F.3d at 536.

65

See, e.g., Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 415 (D. Del.
2007).

66

See id. Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011).

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collective action would survive the decertification process.”67 To proceed
otherwise “would be an exercise in futility and wasted resources for all parties
involved.”68 “Although the burden for certifying a FLSA lawsuit for collective
action notification is light, there are limits, and the district court cannot function as
a rubber stamp for any and all claims that come its way under this statute.”69
“Consistent with this principle, courts have the responsibility to avoid ‘stirring up’
litigation through unwarranted solicitation.”70
Whether the named plaintiff and the proposed opt-ins are similarly situated
is a factual question.71 Thus, when a district court adheres to the legal standard
annunciated in Zavala, its determinations are reviewed for clear error.72
IV.

ANALYSIS
A.

Prevailing Legal And Equitable Principles Demand That This
Court Reject Plaintiff’s Second-Chance Attempt To Certify A
Nationwide Collective Action of Pipeline Inspectors.
1.

Because Plaintiffs have engaged in significant discovery in
the three years since the Hughes case was initiated, they
must offer something more than a modest factual showing
to obtain certification.

67

Basco v. Wal-Mart Stores, Inc., No. CIV.A. 00-3184, 2004 WL 1497709, at *5 (E.D. La.
July 2, 2004).

68

Id.

69

Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 929–30 (D. Ariz. 2010).

70

Burkhart-Deal v. Citifinancial, Inc., No. 07-1747, 2010 WL 457127, at *5 n.14 (W.D. Pa.
Feb. 4, 2010) (Ambrose, J.).

71

Id. at 535.

72

Id.

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Application of a more searching standard is nothing new in FLSA cases
where discovery has already changed hands. For instance, in Bunyan v. Spectrum
Brands, Inc., the United States District Court for the Southern District of Illinois
explained that “[i]n cases such as this one, where substantial but not all discovery
has taken place, the intermediate two-step approach seems particularly
appropriate.”73 The parties in Bunyan had previously undertaken at least ten
months of discovery, and a list of other potential opt-ins was made available.74
The Bunyan Court further summarized its decision to apply an intermediate
level of scrutiny as follows:
It is clear that the parties have conducted a substantial amount of
discovery in this case. They have exchanged interrogatories,
conducted depositions, and exchanged a large number of documents.
The Court cannot close its eyes to the amount of discovery already
performed in this action. At the same time, the Court is cognizant that
Plaintiffs only seek conditional certification at this point and that
discovery is not complete. Taking the intermediate two-step approach
permits the Court to determine whether a sound basis exists for
proceeding conditionally as a collective action while also considering
all evidence available at this time. Additionally, because discovery is
not yet complete, conditional certification, if granted, permits
Defendants to make a fully informed challenge to certification once
discovery concludes. As such, the Court’s analysis proceeds under the
intermediate approach.75

73

No. 07-CV-0089-MJR, 2008 WL 2959932, at *4 (S.D. Ill. July 31, 2008).

74

Id.

75

Id.

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Interestingly, the decision to permit discovery to influence the substantive
standard at certification in Bunyan was derived from a similar approach followed
in Bouaphakeo v. Tyson Foods, Inc., a case that would reach the Supreme Court of
the United States in 2015.76 As the district court in Bouaphakeo explained, “the
more onerous second stage analysis” allows the factfinder “to account for all the
important facts learned through discovery that inform what putative plaintiffs, if
any, are similarly situated to existing plaintiffs. Many other courts have done
likewise.”77
These sentiments were echoed by the United States District Court for the
Middle District of Alabama, when it wrote in Holt v. Rite Aid Corp. that “[once]
the parties have conducted extensive discovery, it is appropriate to carefully
consider the submissions of the parties with respect to the collective action
allegations.”78 Specifically, the court in Holt found it appropriate to consider
evidence such as declarations presented by the defendants “[b]ecause the issues in
this case revolve around whether the day-to-day tasks of Store Managers and
Assistant Managers are consistent with their designation as exempt.”79

76

564 F. Supp. 2d 870 (N.D. Iowa 2008).

77

Id. at 895.

78

333 F. Supp. 2d 1265, 1274 (M.D. Ala. 2004).

79

Id. at 1275.

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The same was true in Thiessen v. General Electric Capital Corp., where the
United States District Court for the District of Kansas applied an intermediate level
of scrutiny to the “similarly situated” inquiry after the parties conducted three
months of discovery and several individuals had already opted in.80 The court in
Thiessen set out several factors useful for consideration in conditional certification
cases where discovery had already changed hands. Those factors included: “(1) the
disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendant which appear to be individual to each
plaintiff; and (3) fairness and procedural considerations.”81
Several courts within the Third Circuit have recognized the need for an
intermediate level of scrutiny in FLSA cases.82 Moreover, application of a more
searching standard in cases where substantial discovery has already changed hands
is, in my view, consistent with the Third Circuit’s instructions in Zavala. After all,
the crux of that decision is that the primary factor responsible for tightening the
standard at certification is the existence of meaningful discovery, even if the case’s
procedural posture has not yet formally advanced to decertification.
80

Thiessen v. Gen. Elec. Capital Corp., 996 F. Supp. 1071, 1081 (D. Kan. 1998)

81

Id.

82

See, e.g., In Re: Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., No.
2:07-CV-01687-JFC, 2010 WL 3447783, at *17 (W.D. Pa. Aug. 13, 2010) (Conti, J.); Reinig
v. RBS Citizens, N.A., No. 15CV1541, 2016 WL 1746848, at *2 (W.D. Pa. May 3, 2016)
(Schwab, J.); Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 415 (D.
Del. 2007).

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That significant precertification discovery can influence the appropriate
standard for certification is reasonable and broadly applicable. By extension, a
more searching standard is particularly uncontroversial where nearly the same
exact counsel and parties have already exchanged discovery in two strikingly
similar actions. It will not always be the case that existing discovery from a prior
case can influence the appropriate standard on a subsequent certification motion in
a distinct matter. Rather, district courts will naturally have to consider the extent to
which those actions share common litigants and common claims, common facts
and common law.
Further, it would be an entirely inefficient use of resources for this Court to
conditionally certify a collective action, only to double-back because the bulk of
the discovery it already considered has cast an ominous shadow upon the propriety
of the ultimate merits. And in many ways, this case is perhaps an extreme example
of that principle. For instance, Plaintiffs have filed their motion for class
certification pursuant to Federal Rule of Civil Procedure 23 contemporaneous with
their motion for conditional certification under the FLSA. Presumably, then,
Plaintiffs acknowledge that they have in fact received discovery sufficient to
enable them to move for a final substantive determination on their Rule 23
allegations. A similar posture was observed in a case entitled Gandhi v. Dell Inc.

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There, the United States District Court for the Western District of Texas recounted
as follows:
One of the puzzling aspects of this issue in the present case is that the
parties agreed to a scheduling order which explicitly contemplated
discovery being conducted before a motion for class certification
would be filed. As stated above, parties generally move for
conditional certification early on in a case when little to no discovery
has been conducted. Given that most cases addressing the standard of
review for conditional certification base their decision in large part on
the status of discovery, one would have thought that if the parties
were agreeing to a discovery schedule, they would also have agreed
on the standard to be applied in determining if this case should
proceed as a collective action. That is not the case, however. At the
hearing, Plaintiffs’ counsel stated that it was his understanding that
discovery would be very preliminary and limited in scope, and
therefore, the Court should review the collective action certification
under the more lenient, initial review standard. Defense counsel, on
the other hand, argued that because several months were set aside for
discovery, because thousands of pages of documents have been
exchanged, and because nearly twenty depositions have been taken,
using the lenient standard—which is predicated on the assumption
that little or no discovery has occurred—would be inappropriate here.
There is merit to both sides’ contentions on this issue. Plainly,
because of the amount of discovery conducted to this point, this is not
a classic case where the lenient standard is clearly appropriate. The
parties contemplated that they would conduct discovery before the
certification issue would be decided, and, given this, it does not seem
wholly appropriate to use a very lenient standard, particularly when
such a standard was adopted for situations when little or no discovery
had been conducted. Further, the case has been pending for more than
a year, and the parties had six months to conduct what the scheduling
order described as the “discovery related to Plaintiff’s Anticipated
Motion for Certification.”83

83

No. A-08-CA-248 JRN, 2009 WL 1940144, at *5 (W.D. Tex. July 2, 2009).

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I also sense that for all of the discussion about lenient versus intermediate
standards and the various stages of scrutiny, a district court’s role in disposing of
conditional certification motions has become increasingly entangled in semantics.84
The end relationship is much more straightforward: the more discovery you have
received, the more searching a standard to which your motion to certify will be
held. The reasoning is just as compelling: the plaintiff has received the discovery it
asked for—now it needs to support its allegations.
This was the tenor of the oral argument offered by Annette A Idalski,
Esquire, counsel for the Defendant. She offered the following rebuttal to counsel
for Plaintiffs’ contention that a bifurcated discovery militated for application of the
most lenient standard possible:
So what level is evidence is required? We’re past the modest factual
showing. And most courts—we cited to the Creely case, which
actually has a good analysis from the court—several different courts
as to what should the standard be at this point. If there is extensive
discovery conducted, the plaintiff has to make a modest plus factual
showing, not just a modest showing. And courts are pretty clear on
that. We’re not at the preponderance of the evidence standard. The
court did bifurcate discovery.
Judge Fischer did bifurcate discovery. But quite frankly, so much
discovery was conducted in the last six months I’m not sure if there is
any necessary discovery necessary to be done conducted going
forward. I think the factual record is complete. It appears to be, for the
most part, complete.
84

See, e.g., Reinig v. RBS Citizens, N.A., No. 15CV1541, 2016 WL 1746848, at *2 (W.D. Pa.
May 3, 2016) (noting that the “intermediate” label was “a distinction without a difference”
given the probative evidence that existed in the record).

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...
I don’t know how much more we can prove here. In 20 years I’ve
never had a case with this much evidence at a motion for conditional
certification stage. Typically two months after the case gets started,
the plaintiff will file maybe an affidavit and have some evidence or
allegation of an inference of a violation, and the Court has no other
evidence to look at. So of course, the Court has to grant conditional
certification, because there is no evidence to rebut. Here we did six
months of discovery. So be careful what you ask for.85
Accordingly, this Court will follow the lead of so many district courts before
it by requiring that Plaintiff make at least an intermediate showing that any opt-ins
are “similarly situated” to the named representative. This “intermediate” or
“modest plus” standard requires that Plaintiff make “some factual showing that the
similarly-situated requirement is satisfied,” “as a result of the discovery as
measured against the original allegations and defenses.”86
2.

The named and opt-in Plaintiffs are not similarly situated,
because they held different positions, worked for different
clients and different supervisors on different projects in
different states, and performed different work, all pursuant
to localized policies and individualized salary agreements.

Section 216(b) of the FLSA permits certification of a collective action only
if the Court determines that the opt-in plaintiffs are “similarly situated” to the
named plaintiffs. Although the term “similarly situated” is not defined by that
provision, “[t]he United States Court of Appeals for the Third Circuit has identified

85

Tr. of Nov. 21, 2016 Oral Argument at 98:16–25; 111:20–112:09.

86

See id. Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011).

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relevant factors to consider as part of this analysis: ‘whether the plaintiffs are
employed in the same corporate department, division, and location; whether they
advance similar claims; whether they seek substantially the same form of relief;
and whether they have similar salaries and circumstances of employment.’”87
District courts within the Third Circuit’s vicinage that have applied this
guidance from the appellate court generally have grouped their analysis into three
subparts: “(1) the disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to the defendant; and (3) fairness and
procedural considerations.”88
“The first factor assesses the opt-in plaintiffs’ job duties, geographical
location, supervision, and salary.”89 At that stage, “allegations of an overarching
policy are insufficient, and plaintiffs are required to produce substantial evidence
of a single decision, policy or plan.”90 “The second factor concerns whether
potential defenses apply to the opt-in class as a whole or whether many different
defenses will be raised with respect to each individual opt-in plaintiff.”91
87

Karlo v. Pittsburgh Glass Works, LLC, No. 2:10-CV-1283, 2014 WL 1317595, at *17 (W.D.
Pa. Mar. 31, 2014), aff’d, No. 15-3435, 2017 WL 83385 (3d Cir. Jan. 10, 2017) (Smith J.)
(quoting Zavala, 691 F.3d at 536–37).

88

Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., No. CIV.A. 10-948, 2011 WL 6372852,
at *3 (W.D. Pa. Dec. 20, 2011) (Ambrose, J.).

89

Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378 (W.D. Pa. 2011) (Ambrose, J.).

90

Moss v. Crawford & Co., 201 F.R.D. 398, 409–10 (W.D. Pa. 2000) (internal quotation marks
omitted).

91

Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378 (W.D. Pa. 2011).

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Importantly, the third and over-arching factor, which centers on fairness,
efficiency, and procedural considerations, requires the district court to consider
whether the litigation “would require inquiry into the employment situation of each
plaintiff rather than on a broad scale approach to the employment situation of the
group.”92 Analysis of these factors should be made in light of § 216(b)’s “primary
objectives”: (1) to lower costs to the plaintiffs through the pooling of resources;
and (2) to limit the controversy to one proceeding which efficiently resolves
common issues of law and fact that arose from the same alleged activity.”93 “The
court must also determine whether it can coherently manage the class in a manner
that will not prejudice any party.”94
Turning to the instant matter, I conclude that “Plaintiffs have failed to satisfy
the ‘similarly situated’ standard. The similarities among the proposed plaintiffs are
too few, and the differences among the proposed plaintiffs are too many.” 95 I begin
with the first factor, the disparate factual and employment settings of the individual
plaintiffs. “To weigh in favor of collective treatment, similarities must ‘extend
beyond the ‘mere facts of job duties and pay provisions,’ ‘and be viewed in light of

92

Lusardi v. Xerox Corp., 118 F.R.D. 351, 360 (D.N.J. 1987).

93

Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000) (citing Hoffmann–La Roche,
Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

94

Moss, 201 F.R.D. at 410. Accord Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378
(W.D. Pa. 2011).

95

Zavala, 691 F.3d at 537–38.

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the claims asserted.’”96 Indeed, “being similarly situated does not mean simply
sharing a common status, rather, it means that one is subjected to some common
employer practice that, if proved, would help demonstrate a violation of the
FLSA.”97 “General allegations of an overarching employer policy ‘are insufficient,
and plaintiffs are required to produce substantial evidence of a single decision,
policy, or plan.’”98 Thus, “where an employer maintains a formal policy of lawful
compensation, plaintiffs must present ‘substantial evidence that he employer, in
fact, shirked its FLSA responsibilities.’”99
GIFS staffs its clients’ projects with many different types of inspectors,
including: Chief Inspectors, Assistant Chief Inspectors, COR Inspectors, Corrosion
Inspectors, Electrical and Instrumentation Inspectors, Environmental Inspectors,
Safety Inspectors, Utility Inspectors, Welding Inspectors, and Coating
Inspectors.100 Each type of inspector has different qualifications, expertise, and
performs different job duties.101 Nevertheless Plaintiff seeks certification of
collective action generically comprising “all current and former employees of
96

Martin v. Citizens Fin. Grp., Inc., No. CIV.A. 10-260, 2013 WL 1234081, at *3 (E.D. Pa.
Mar. 27, 2013) (quoting Zavala v. Wal Mart Stores, Inc., 2010 WL 2652510, at *3 (D.N.J.
June 25, 2010).

97

Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 538 (3d Cir.2012).

98

Martin, 2013 WL 1234081, at *3 (quoting Andrako, 788 F.Supp.2d at 378).

99

Martin, 2013 WL 1234081, at *3 (quoting Camesi v. University of Pittsburgh Med. Cent.,
2011 WL 6372873, at *4 (W.D.Pa., Dec.20, 2011)).

100

ECF No. 156 at 12.

101

Id.

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[GIFS] who performed work as a pipeline inspector in the United States in any
workweek between three years prior to the date of the Court’s Order and the
present.”102 The proposed class otherwise embraces no limitations based on
geography, timeframe, client, position type, or project nature, though it does
incorporate a carve-out for three separate projects where workers were believed to
not have suffered any unlawful treatment.103
Since 2011, GIFS has staffed approximately 2,275 employees with over 40
clients across at least 35 states, both on- and off-shore.104 As Robert J. Sprick, the
company’s Senior Vice President, testified, “[t]he number and type of jobs staffed
by [GIFS] on any particular project also varies considerably from project to
project, client to client, and over time.”105 This means that “similarly titled jobs,
like ‘pipeline inspector,’ often entail different job duties from project to project, as
each client sets the job duties for each [GIFS] employee on its projects.”106
As recited more fully above, GIFS “generally has no authority to direct the
tasks performed by its employees on its clients’ respective projects, or control
when or how such tasks are performed.”107 Instead, GIFS’s clients “generally
102

ECF No. 141 at 1.

103

See id.

104

Sprick Feb. 20, 2015 Decl., ECF No. 99 Ex. 7 ¶ 6.

105

Id. ¶ 9.

106

Id. ¶ 10.

107

Id. ¶ 11.

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assign work to [GIFS’s] employees, and [GIFS’s] employees exercise various
levels of discretion and independent judgment in performing their assigned
tasks.”108 “Job duties also may vary depending upon the portion of a particular
project that an employee is assigned, as conditions can vary at different parts of a
worksite.”109
Thus, because GIFS is a staffing company, its inspectors’ duties depend
upon the demands of each particular client.110 In fact, “inspectors are staffed for
each particular project according to the needs of GIFS’s clients,” and
“[s]upervision of inspectors may differ on a project-by-project basis depending
upon the individual supervisor assigned by the client.”111 Accordingly, GIFS’s
various clients, not GIFS, “control[ ] each staffed employee’s work schedule,
whether the job site is open for work on any particular day, and any applicable sick
leave and vacation policies.”112
Courts disposing of certification motions in natural gas drilling cases must
recognize that, by the very nature of the industry, distinctions between job sites and
the nature of any two projects introduce a certain variability into the duties of
natural gas workers. Such is the nature of a transcontinental energy enterprise: Not
108

Id.

109

Id. at 10.

110

ECF No. 156 at 12.

111

Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 8.

112

Sprick 2015 Decl. ¶ 16.

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only do different types of inspectors perform different tasks, but those tasks also
vary depending upon worksite.
For instance, the evidence uncovered in discovery reveals that a utility
inspector on a pipeline project might work to ensure that the project is carried out
safely, that the ditch is properly excavated, and that the right-of-way is cleared in
accordance with specifications.113 However, utility inspectors working on a project
during later stages would be charged with, for example, ensuring that the pipeline
is installed in a stress-free condition or ensuring that the appropriate rock shield,
padding, and compacting equipment are used during removal.114 However, the
named Plaintiff here, a utility inspector on a compressor station project, would not
perform any of those tasks.115 Rather, he would have an entirely distinct set of job
responsibilities specific to the regulated functioning of the compressor station.116
Again, a utility inspector on a pipeline construction project might test soil
compaction, whereas a utility inspector on a compressor station project is likely to
inspect the pouring of concrete and review structural issues involving the erection
of a building.117 A welding inspector on a pipeline construction project primarily

113

Sprick 2016 Decl. ¶ 22.

114

Id.

115

Id.

116

Id.

117

May 5, 2016 Decl. of Robert Tate, ECF No. 99 Ex. 9 ¶ 12.

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reviews one kind of weld made repeatedly as sections are added to the pipeline.118
However, a welding inspector at a compressor station would inspect multiple kinds
of welds made pursuant to multiple weld procedures and which might involve
pipeline, tubes, air piping, or structural steel.119 These processes pose “unique
circumstances and challenges that are different from welding in the field on a
pipeline project.”120
Recall Table 1 from above, which lists the pertinent employment
characteristics of each of the Plaintiffs:
Name
Thomas Sloane

Allen Hinkle

Time Worked
April 2014October 2014
August 2012December
2012;
October 2013March 2014

States
Worked

Job Title(s)

Client(s)

OK, PA

Welding
Inspector

Kinder
Morgan

MO, WV

Welding
Inspector

Enbridge;
MarkWest

Justin Bish

June 2011March 2014

OH, WV

Richard
Stapleman

October 2013December
2013;
March 2015June 2015

AZ, NM,
TX

118

Id. ¶ 13.

119

Id.

120

Id.

- 32 -

Assistant
Chief
Inspector;
Utility
Inspector
Chief
Inspector;
Quality
Control
Inspector

MarkWest

Kinder
Morgan

Case 4:16-cv-01571-MWB Document 192 Filed 03/24/17 Page 33 of 67

Name

Time Worked

Rodney
LaLonde

March 2012September
2014;
February 2015June 2015

Buggs Pollett

June 2012;
May 2014October 2015

States
Worked

NY, OH,
WV

MS

Job Title(s)
Chief
Inspector;
Assistant
Chief
Inspector;
Field
Inspector
Welding
Inspector;
Utility
Inspector

Client(s)

MarkWest;
Williams

Panhandle
Energy; Gulf
South
Pipeline

From my perspective, this overview reveals that, despite the lengthy time
period during which this litigation has been percolating, counsel for Plaintiffs has
produced but a smattering of potential cross-country participants. The opt-ins share
no common thread, and they offer virtually zero reasons why, for instance,
resolution of an FLSA case as to a utility inspector who worked for Panhandle
Energy in Mississippi is any way comparable to or in any way would expedite that
brought by a Chief Inspector working for MarkWest in New York. To the contrary,
the Court is left with a handful of heterogeneous claimants who worked in different
locations, in different positions, for different clients and supervisors, under
different pay agreements.
Plaintiffs’ ultimate fallback position is one of conciliation rather than
aggression: if the Court rejects nationwide certification, it should instead certify a
class on a statewide basis instead. There are three problems with that argument.

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First, that a collective action fails certification on a nationwide basis does not
automatically mean that the nationwide shoe was too large, so a statewide shoe
must fit just right. In fact, as here, it could mean that neither approach is supported
by the facts. Taken to the extreme, counsel for Plaintiffs would have this Court
certify separate FLSA collective actions for each individual project for each
individual client in each individual state—and how, if at all, would such an
approach further judicial economy?
Second, it is not the Court’s task to draw appropriate subclasses on counsel
for Plaintiffs’ behalf. If Plaintiffs believe that a more aptly defined subclass is
appropriate, then they should present supporting evidence accordingly.
Third, even were the Court to draw a narrower class, such a class would
likely be doomed from the outset. This case was brought in federal district court in
Pennsylvania, though only one claimant (the named Plaintiff) ever worked at a
Pennsylvania job site according to the pertinent declarations.121 Further, scouring
the employment circumstances of the putative class reveals that the only other
potentially viable subclass would perhaps be that comprised of individuals who
worked at the MarkWest Ohio site. The problem with that subclass is, of course,
that it was already expressly rejected in Hughes.

121

See, e.g., John v. Nesco Serv. Co., No. 4:15-CV-253, 2016 WL 7757388, at *1 (S.D. Tex.
June 10, 2016) (“[T]he Court will deny St. John’s motion for class certification because no
one else has expressed interest in opting into this lawsuit.”).

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Taking all of these factors into consideration, Plaintiffs have failed to show
the requisite similarity in employment circumstances required to obtain
certification. Discovery has plainly not furthered their claims. To the contrary, it
has largely debunked them. Even though I have applied a more stringent lens than
usual, I believe it is also important to note for the record that I have serious
reservations about whether the hodge-podge of claimants presented by counsel for
Plaintiffs at this late stage would even be sufficient the most lenient of standards.
As the Defendant here aptly notes: Despite the significant variance that
attends the inspector position, “Plaintiff’s proposed nationwide class includes
every kind of inspector on every kind of project for every client in every state.”122
Accordingly, certification and facilitation of notice will be denied for those
reasons.
3.

Because the members of the putative class are so diverse,
resolution of Defendant’s exemption defenses will require
significant individualized factfinding, which Plaintiffs have
failed to show would be aided by certification in any way.

The second factor—the defenses available to the Defendant—also weigh
against certification. The exemptions that GIFS contends apply to this case (the
administrative and highly compensated exemptions) each have two fundamental
elements that must be litigated and decided as to each Plaintiff before entitlement

122

ECF No. 156 at 15.

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to overtime can be shown: a job duties test and a salary basis test.123 The highly
compensated exemption clarifies that workers who earn a salary of $100,000.00 or
more, whose primary duty includes performing office or non-manual work, and
who customarily and regularly performs any one or more of the exempt duties of
an executive, administrative, or professional employee, need not be paid overtime.
The administrative exemption excepts from overtime payments such workers
whose primary duty is office or non‐manual work directly related to management
or general business operations of the employer or the employer’s customers.124
As applied to the administrative exemption, “primary duty” means “the
principal, main, major or most important duty that the employee performs.
Determination of an employee’s primary duty must be based on all the facts in a
particular case, with the major emphasis on the character of the employee’s job as
a whole.”125 Importantly, the primary duty includes exercise of discretion and
independent judgment with respect to matters of significance.126 Thus, “the
exercise of discretion and independent judgment involves the comparison and the
evaluation of possible courses of conduct and acting or making a decision after the

123

29 C.F.R § 541.200 (administrative); § 541.601 (highly compensated).

124

29 C.F.R § 541.200.

125

Department of Labor, Fact Sheet #17C (“Administrative Exemption”), available at
https://www.dol.gov/whd/overtime/fs17c_administrative.pdf.

126

See id.

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various possibilities have been considered.”127 Factors to consider include, but are
not limited to:
whether the employee has authority to formulate, affect, interpret, or
implement management policies or operating practices; whether the
employee carries out major assignments in conducting the operations
of the business; whether the employee performs work that affects
business operations to a substantial degree; whether the employee has
authority to commit the employer in matters that have significant
financial impact; whether the employee has authority to waive or
deviate from established policies and procedures without prior
approval, and other factors set forth in the regulation.128
“The fact that an employee’s decisions are revised or reversed after review does
not mean that the employee is not exercising discretion and independent
judgment.”129
a.

The variety in job duties and discretion exercised by
the putative class members precludes certification.

“Application of the administrative exemption is fact specific.”130 Thus,
although “the need to examine the facts of an employee’s work does not
categorically preclude collective determination of exemption,” certification is
rendered less feasible in cases where plaintiffs have failed to produce “evidence

127

Id.

128

Id.

129

Id.

130

Williams v. U.S. Bank Nat. Ass’n, 290 F.R.D. 600, 606 (E.D. Cal. 2013).

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indicat[ing] that prospective class members’ job duties were substantially
similar.”131
District courts in the Third Circuit have hesitated to grant nationwide
certification in exemption cases where plaintiffs have failed to adduce sufficient
evidence of similarity. For instance the United States District Court for the District
of New Jersey has explained that “[u]nsurprisingly, determining whether an
employee is exempt involves a fact intensive inquiry. . . . Acknowledging that
reality, a number of courts have declined to certify proposed classes of financial
advisors who claim they were misclassified as exempt.”132 In addition, as the
United States District Court for the District of Delaware has explained “[i]f proof
of the essential elements of the cause of action requires individual treatment, then
class certification is unsuitable.”133
Based upon what discovery has revealed here, the level of discretion
employed by individual inspectors varies depending upon the particular client and
supervisors involved. For instance, when a project is widely dispersed, supervisors
cannot always be available to inspectors.134 Consequently, inspectors often have to
observe construction being performed in two or more places at once, requiring
131

Id.

132

Smith Barney LLC Wage & Hour Litig., No. 11-cv-3121-WJM, 2016 WL 1407743, *5
(D.N.J. Apr. 11, 2016).

133

Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 416 (D. Del. 2007).

134

ECF No. 156 at 14.

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them to make significant judgment calls about how to manage the workflow
attendant to both locations.135 Moreover, depending on the worksite and the
particular supervisor, some inspectors were empowered to give orders regarding
cutting defective welds, while others could not give that order without approval.136
In fact, as a welding inspector at Station 319, Mr. Sloane testified that his
job was critical to the operation of the pipeline “[b]ecause natural gas is flammable
and explosive, and you really want to contain it. You want good quality welds;
otherwise, there’s that possibility of not containing it and having a fire and
explosion and environmental damage.”137 Without quality welding, a natural gas
compressor station can become “[d]angerous to life, health, and environment.”138
Mr. Sloane further admitted that, at times, his supervisor would permit him a
great deal of autonomy in precisely how, where, and in what manner he could
perform his day-to-day job duties. For example, when he was working on the
Paden Vapor Loop project, Mr. Sloane spent most of his time unsupervised, sitting
in his truck doing paperwork.139 Yet, on the Station 319 project, Mr. Sloane was

135

Id.

136

Id.

137

ECF No. 99, Ex. 20, Sloane Dep. 272:03–14.

138

Id.

139

See id. at 285:18–23.

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required to allocate his resources by walking around looking at welds “all day
long.”140
Mr. Sloane also addressed safety issues that he observed and only
periodically assisted with manual work if he got “bored.”141 Stressing the
supervisory nature of his position, he explained that “it wasn’t part of my job. I
was more less just—because I don’t—I get bored standing around too long, so I
would pick up a wrench and help them bolt something up or something like that,
yeah.” 142 Further, when a weld failed to pass Mr. Sloane’s inspection, the welders
“would ask [him his] personal opinion on what [he] would do as a welder to fix
that, and [he] might offer my opinion.”143
The above-referenced exemptions will be relevant to the proper disposition
of this case. The Court will have to consider each of the pertinent elements
(primary duty, discretion, etc.), as they apply to each potential claimant. However,
Plaintiffs leave the Court guessing as to how certification on a nationwide basis
would materially advance those determinations.
Just as problematically, no evidence has been put forth to explain why, say,
a Chief Inspector at a given site would be subject to the same analysis or outcomes

140

See id.

141

Id. 288:4-17.

142

Id.

143

Id. at 273:21-274:8.

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as that of a Utility Inspector with whom he works. Taken to the extreme, “[e]ven
employees who hold the same job title do not necessarily perform the same
work.”144 That is particularly true where inspectors here were subject to different
supervision and expectations depending upon the client and the particular worksite.
The Honorable Donetta W. Ambrose, writing for the United States District
Court for the Western District of Pennsylvania in Kuznyetsov v. W. Penn
Allegheny Health Sys., Inc., reached a similar conclusion in a case with a similar
posture as this one.145 In that decision, Judge Ambrose found individualized
defenses to be “highly relevant” and likely to “overwhelm” a consolidated
proceeding.146 This was true, because, as here, “[t]he defenses to which Defendants
point” would likely be “unique to specific Plaintiffs.”147 “Trying this case in a
collective forum,” Judge Ambrose concluded, would “prevent Defendants from
employing these defenses” and “turn the trial into 824 mini trials.”148 In particular,
the defendants would “be unable to delve into the specifics of an individual
Plaintiff’s situation, supervisor’s behavior, etc.”149 “This hardly promotes the

144

Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000).

145

No. CIV.A. 10-948, 2011 WL 6372852, at *7 (W.D. Pa. Dec. 20, 2011) (Ambrose, J.).

146

Id. at *7.

147

Id.

148

Id.

149

Id.

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efficiency contemplated by collective actions.”150 Judge Ambrose, who also
authored the leading decision Andrako v. U.S. Steel Corp., distinguished that prior
case, noting that the differences were more problematic in Kuznyetsov “because
the defenses [went] primarily to liability” in the instant matter.151
Further, even relegating the ultimate burden of proof to the Defendant on the
issue of exemptions, Plaintiffs have offered few suggestions that nationwide
certification would in any way streamline those ultimate determinations. For all the
Court knows, two workers might appropriately advance an exemption and four not,
or six might be exempt and none entitled to overtime. That is an especially
troubling realization in light of the discovery that has already been conducted and
the sweeping relief that is presently being requested.
Counsel for Plaintiffs’ primary response is that the exemption issue can be
overlooked, given certain Department of Labor regulations and guidance, which
state that “[o]rdinary inspection work generally does not meet the duties
requirements for the administrative exemption.”152 Needless to say, that directive,
though well-taken by this Court, does not provide a one-size-fits-all answer. Proper

150

Id.

151

Id.

152

See Tr. of Nov. 21, 2016 Oral Arg. at 40–42 (quoting 29 C.F.R. § 541.202(g); Weiss Report;
DOL Field Operations Report).

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resolution requires a thorough consideration of the relevant facts, not blind
adherence to a generalized policy statement.
It goes without saying that the above guidance begs the question as to what
types of inspection tasks constitute “ordinary inspection work” and what types do
not. In fact, the case law appears to distinguish between “ordinary inspection
work,” such as “filling out checklists” or “conduct[ing] an audit,” and inspection
work that more closely resembled implementation and assurance of “quality, safety
and health, and compliance policy,” where the inspectors “have independence . . .
to identify the root cause of the problem and determine the best way to fix or
correct the problem.”153
Consequently, federal courts have determined that inspectors may
appropriately qualify for an exemption depending upon the type of work they
perform. The United States Court of Appeals for the Sixth Circuit, describing
circumstances eerily similar to Mr. Sloane’s own deposition excerpts, determined
that inspectors were exempt in Schaefer v. Indiana Michigan Power Co. The Court
reasoned as follows:
The evidence, viewed in the light most favorable to Schaefer, supports
his contention that he spends some of his time performing manual
tasks outside the office but this amount of time is not so much that he
no longer qualifies for the exemption. Schaefer admits that for the past
few years he has spent fifty percent of his time at his desk and that he
153

Zackaria v. Wal-Mart Stores, Inc., No. ED CV 12-1520 FMO, 2015 WL 2412103, at *12
(C.D. Cal. May 18, 2015).

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currently spends greater than eighty percent of his time at his desk.
Even when he is away from his desk, he does not spend all of his time
on manual tasks. Although Schaefer spends some of this time
inspecting trucks, examining load bracings, inspecting shipping
containers, and examining shipping labels, these “inspection” tasks—
even if not performed at his desk—are nonetheless not manual tasks.
Schaefer performs manual tasks when he actually picks up a hammer
to brace a load or installs or tightens a strap. Accordingly, Schaefer
does not spend so much of his time on these manual tasks so as to fall
outside exempt status.154
Moreover, the set of bare-bones affidavits that Plaintiffs have offered are
precisely what the FLSA case law has pejoratively termed “too thin a reed on
which to rest a nationwide certification.”155 The affidavits are exceptionally sparse,
merely listing each opt-in Plaintiff’s job title and work history before reciting a
boilerplate conclusion about payment of a day rate and non-payment of overtime.
Not even a glimpse of similarity between those affiants can be seen.156 Judicial
focus in cases like this one is properly placed on the economic realities of the
employment situation, not on nominal conclusions.157 To reason otherwise would
disserve Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and

154

358 F.3d 394, 402 (6th Cir. 2004).

155

Guillen v. Marshalls of MA, Inc., No. 09 CIV. 9575 LAP GWG, 2012 WL 2588771, at *2
(S.D.N.Y. July 2, 2012).

156

Though Plaintiffs suggest that they all belonged to the same general “division” or
“department,” Defendant has explained that “department 39” refers to GIFS itself and Mr.
Sprick the Senior Vice President, all GIFS employees, inspectors and non-inspectors alike,
share those two characteristics. See ECF No. 156 at 5 n.6.

157

Cruz v. Conocophillips, No. 4:15-CV-02573, 2016 WL 7106363, at *3 (S.D. Tex. Sept. 23,
2016).

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inexpensive determination of every action.” For these independent reasons,
certification will be denied.
b.

Non-uniformity among the putative class members’
pay letters and actual compensation received precludes
certification.

The parties debate whether this action is more appropriately construed as a
“day rate” case or an “exemption” case. The reality is that it draws from both
bodies of jurisprudence, and that fact makes the certification burden exceptionally
more demanding for Plaintiffs here. Because the applicable exemptions hinge on
whether each Plaintiff received a salary, the Court will necessarily need to inquire
into the individual employment agreements, pay letters, and economic realities.
Unfortunately for the Plaintiffs, that effectively would require this Court to carry
out distinct analyses as to each individual claimant, because the respective pay
agreements contain materially different language and are unique to each inspector,
his experience and discretion, the client, and the particular conditions of
employment.
To illustrate, Table 2 below sets forth the actual language from each of the
Plaintiffs’ pertinent pay agreements. That language is typically distinct and
dynamic as between different inspectors and different pay letters. From the outset,
I note that counsel for Plaintiffs points to Defendant’s issuance of so-called
“clarification” letters after a meeting between counsel in 2014 as evidence that

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Defendant was attempting to cover the tracks of an illicit compensation scheme.
The facts do not bear that charge out. Rather, issuance of the clarification letters
are equally consistent with the innocuous theory that the Defendant paid its
inspectors a guaranteed salary and moved swiftly to clarify that fact when it was
confronted by Plaintiffs’ counsel. Without more, such an accusation falls flat.
Table 2. Comparison of Plaintiffs’ Pay Letters
Name
Thomas
Sloane
Thomas
Sloane
Allen
Hinkle
Allen
Hinkle
Allen
Hinkle
Allen
Hinkle
Allen
Hinkle
Allen
Hinkle

Letter Dated

Pay Letter Text

Apr. 11, 2014

Salary: $386.00/Calendar Day (as approved by client)

Jun. 17, 2014

Fixed Salary: $386.00/Day—Guaranteed seven (7) days
per week

Justin Bish

Jan. 8, 2015

Richard
Stapleman
Richard
Stapleman
Richard
Stapleman
Buggs
Pollett

Aug. 13, 2012 Salary: $267.00/Day Worked
Oct. 24, 2013

Salary: $419.95/Day Worked

Mar. 3, 2013

Salary: $362.00/Day Worked

May 15, 2014 Salary: $355.00/Day—Five (5) days per week
Jul. 22, 2014
Apr. 2, 2015

Salary: $355.00/Day—Guaranteed five (5) days per
week
Fixed Salary: $346.00/Day—Guaranteed six (6) days per
week
Fixed Salary: $405.00/Day—Guaranteed five (5) days
per week

Oct. 1, 2013

Salary: $337.00/Based on 7 day work week

Oct. 30, 2013

Salary: $330.00/Based on 7 day work week

Mar. 12, 2015

Fixed Salary: $446.00/Day—Guaranteed seven (7) days
per week

Jun. 7, 2012

Salary: $367.00/Day Worked (No Overtime)

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Case 4:16-cv-01571-MWB Document 192 Filed 03/24/17 Page 47 of 67

Name
Buggs
Pollett

Letter Dated
Jun. 17, 2014

Pay Letter Text
Fixed Salary: $285.00/Day—Guaranteed six (6) days per
week

Clearly, the terms recounted above paint a wide-ranging portrait of the types
of compensation agreements entered with its inspectors, each of which would
require individualized interpretation and analysis. “This case thus is a far cry from
those where nationwide conditional certification has been granted based on
evidence of a company’s ‘national policy’ that itself gave rise to the alleged FLSA
violations.”158 To the contrary, the truth or falsity any FLSA violation here hinges
upon particularized inquiries unique to each claimant and his employment setting.
Another issue throughout this litigation has been the extent to which salary
guarantees must be expressed in writing rather than verbalized. I note, however,
that the above overview makes clear that several “guarantees” were memorialized
in writing by the Defendant. Thus, somewhat confusingly, for Plaintiffs to prevail,
they must contend that a promised amount guaranteed for a set period of days was
not a salary.
Just because a salary is expressed as a guaranteed amount per day does not
mean that it is no longer a salary—just the same as expressing it in an hourly, biweekly, monthly, or quarterly increments does not convert it from a salary to an
158

Martin v. Sprint/united Mgmt. Co., No. 15 CIV. 5237 (PAE), 2016 WL 30334, at *7 n.11
(S.D.N.Y. Jan. 4, 2016).

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“hourly rate,” “monthly rate,” or “quarterly rate.” Moreover, Plaintiffs’
interpretation would require this Court to assume that, in least one case, GIFS
stated in writing that it would pay a “salary” and “no overtime,” although in reality
it paid a day rate and owed the worker overtime. That GIFS effectively
memorialized its own FLSA violation would certainly be an absurd interpretation
of that letter.
Likewise, none of the affiants here stated that they did not in fact receive a
guarantee each week; none state that they were not paid if they did not work on a
given day, and none state that their pay fluctuated in correlation to the number of
days they worked each week. Indeed, they were not so deprived, as the below
Payroll Records summaries show that Mr. Sloane, Mr. Stapelman, and Mr.
LaLonde received a constant, guaranteed salary each week that they were
employed by GIFS.159
Figure 1. Sloane Payroll Record

159

ECF No. 99 Ex. 28.

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Figure 2. Stapleman Payroll Record

Figure 3. LaLonde Payroll Record

“An employee will be considered to be paid on a ‘salary basis’ within the
meaning of this part if the employee regularly receives each pay period on a
weekly, or less frequent basis, a predetermined amount constituting all or part of
the employee’s compensation, which amount is not subject to reduction because of

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variations in the quality or quantity of the work performed.”160 “Whether an
employee is paid on a salary basis is determined by the compensation actually
received, not what is stated in an employment agreement.”161
Plaintiffs offer no persuasive justifications to depart from such pragmatic
reasoning—and for obvious reasons: reasonable review of the above Payroll
Records reveals that many of the claimants received the same amount of pay every
week they worked for GIFS, a disbursement known in common parlance as a fixed
salary.
Highly problematic for Plaintiffs are the existence of days upon which the
claimants were not at work but were nevertheless paid the same fixed salary. For
instance, the United States Court of Appeals for the Seventh Circuit in Kennedy v.
Commonwealth Edison Co. held that power plant supervisors were paid a salary
basis and came within the reach of the administrative exemption where “the record
indicate[d] that even if an employee had chosen to take the day off without pay,
ComEd would not have reduced her salary.”162
A day away from work without a reduction in pay is precisely what the lead
Plaintiff Mr. Sloane was treated to during the 2014 Fourth of July weekend.
160

29 C.F.R. § 541.602(a).

161

Desmond McDonald v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-00432, 2017 WL
462249, at *1 (S.D. Ohio Jan. 4, 2017) (citing Orton v. Johnny's Lunch Franchise, LLC, 668
F.3d 843, 847-48 (6th Cir. 2012)).

162

410 F.3d 365, 371 (7th Cir. 2005) (Wood, J.).

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Deposition testimony reveals that Mr. Sloane only worked for a half-day on
Friday, July 4, 2014, went to New York with his fiancée to watch the fireworks on
Saturday, July 5, and then did not return to work until Sunday, July 6. When Mr.
Sloane turned in his timesheet, he wrote that he did not work on July 5 while he
was in New York. Nevertheless, his supervisor ensured that he was paid his full
salary.
Mr. Sloane explained as follow during his June 22, 2016 deposition:
Q.

Did you work on July 5, 2014?

A.

July 5th, 2014?

Q.

Yes.

A.

Yes.

...
Q.

Where did you work on July 5th?

A.

At home.

...
Q.

What did you do when you were working at the apartment on July 5th?

A.

Reports and stuff, going over drawings.163
However, three months later, Mr. Sloane’s story seemed to have shifted. He

revised his prior account as follows:
163

Sloane Jun. 22, 2016 Dep., ECF No. 182 Ex. 19, at 370–72.

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So Friday was the 4th. I worked half a day Friday at the job site and
went to New York City that evening, because I remember we saw
fireworks. And then—or did I—I think I ·worked—yeah, we saw
fireworks in New York City. So I was off Saturday, and then I go
back on Sunday to the job site.164
During oral argument, counsel for Plaintiffs attempted to neutralize this
testimony by arguing that GIFS must have paid its employees their entire day rate,
even if they worked for only a few minutes on any particular day. That is a
questionable explanation that contradicts common sense:
THE COURT:

It seems odd to me, though, that Gulf Interstate would pay its
workers the same rate per day even if they were to only work
ten minutes in one of those days.

MR. JONES:

If they are paying them a day rate, that’s not their choice. That
is what a day rate is. In other words, if I'm being paid on a day
rate, I work one hour, I get paid my entire day rate.

THE COURT:

Or it suggests—it might suggest to an observer that he’s being
paid a salary.

MR. JONES:

Again, I do not disagree that it is consistent—that it is
consistent with and looks like a salary. My point is that it is just
as consistent as being paid on a day rate basis. And that is why
when you are paid on a daily basis, there has to be something
else. And that something else is the guarantee.

THE COURT:

Why would any sophisticated employer—I would assume for
the sake of argument that Gulf Interstate is a sophisticated
employer—use a day rate then? Why would they do that? What
am I missing?

MR. JONES:

In the oil and gas industry, 90 percent of people working out in
a field—in the field are paid on a day rate. I can tell you after

164

Sloane Sep. 25, 2016 Dep., ECF No. 182 Ex. 18, at 106:10–16.

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doing, you know, probably not hundreds but at least tens,
multiple tens, of cases involving companies out in the oil field,
I can tell you that with the exception of one that paid them
hourly, everybody else was paid on a day rate.
THE COURT:

That seems a curious way to do business. That’s not the
business I’m in, obviously. But it seems to me that if they are
being paid—if Mr. Sloane is being paid $378 a day, it looks
like that’s about what it is, that they would be better off putting
him on salary to do that. I mean, wouldn’t they do that, get ten
minutes of work for $378 versus ten hours’ worth of work the
next day for $378. Which is better? I should think it would be
ten hours of work for $378.

That GIFS’s contested business practices are consistent with a wholly lawful
approach (and “consistent” may be an underestimation based on the evidence) is
insufficient at this stage. More is required. As Mr. Sprick explained during several
of his depositions, GIFS employees were in fact guaranteed a fixed salary and not
paid a day rate, and there were compelling accounting reasons to express the salary
payment in the increments in which the company did:
Q.

Okay. Prior to April of 2014, how many days’ pay was a pipeline inspector
guaranteed regardless of the number of days that they worked?

A.

They were guaranteed six days of pay to make up their guarantee.

Q.

Whether or not they worked those days?

A.

That is correct.

Q.

Okay. Could you identify for me, please, sir, each and every document
where it is stated that a pipeline inspector on the MarkWest Ohio project is
guaranteed six days of pay prior to April of 2014?

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A.

Again, it was—they were verbally notified of their six-day guarantee. And
it’s industry practice if you want to get the employee to work for us, we have
to make that guarantee.165

In a subsequent deposition, Mr. Sprick reiterated:
Q.

And nowhere in Exhibit 9 does it say anything about a six-day guarantee,
does it?

A.

No, because the guarantee was verbally told to the individual. And the
reason we state per day worked, it allows us to make permissible deductions
at the beginning and end of the project as well as to pay him for the seventh
day if worked. That’s the reason, you know, that the day worked is part of
the way we calculated the guarantee.

Q.

It doesn’t say anything about a guarantee, does it?

A.

No, because it’s—it was verbally told to him as well as an industry practice
that all inspectors get a guaranteed salary. And let me add that, you know, all
of our pay records demonstrate that they got paid a guaranteed salary.166
Plaintiff suggests that the decision by the United States District Court for the

Southern District of Ohio in Fenley v. Wood Grp. Mustang, Inc. militates for the
opposite conclusion.167 In my view however, the circumstances in Fenley are
entirely distinct from those here. First and foremost, Fenley involved a class of
plaintiffs who had explicitly been characterized as receiving a day rate. In fact, the
defendant classified the plaintiffs as “Non Exempt Day Rate” employees using the
payroll code “DAY.”168 Further, the company’s overtime policy in Fenley stated
165

Sprick Dep. 33:22–34:17.

166

Sprick Dep. 60:7–24.

167

170 F. Supp. 3d 1063 (S.D. Ohio 2016).

168

Id. at 1068.

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that “Non-Exempt day rate Mustangers (DAY) receive a day rate that is inclusive
of all hours worked, including overtime.”169
No such smoking guns exist here. To the contrary, whereas the presence of a
day rate system was effectively a given in Fenley, whether the opt-in and named
plaintiffs were actually paid an unlawful day rate here turns on the text of each
worker’s pay letter and what that worker actually received. With that foundation in
place, it is also important to emphasize that the parties in Fenley had conducted
only very limited discovery by the time that the initial motion for conditional
certification was filed.170 In essence, Plaintiffs here have conducted significantly
more discovery than was conducted in Fenley but have comparatively less to show
for it.
Thus, for all of the preceding reasons, the putative class members are not
similarly situated, and individual questions regarding the application of certain
exemptions would swallow any economies of scale realized by a collective action.
Accordingly, the motion to facilitate notice and certify a collective action is
denied.

169

Id.

170

Id.

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B.

For Parallel Reasons, Plaintiff’s Proposed Rule 23 Class Is An
Inadequate Vehicle To Adjudicate The Remaining Claims.

“Rule 23 governs the certification of class actions in federal courts and its
requirements are more stringent than those of the FLSA.”171 In particular, because
“Rule 23(b)(3)’s predominance requirement is more stringent than the ‘similarly
situated’ requirement under § 216(b),” it would certainly be a rare occurrence for a
given putative class to miss the bar for FLSA certification but simultaneously clear
Rule 23’s correspondingly higher hurdle.172
1.

Because determining one’s eligibility for class membership
would require particularized, factual inquiries into each
worker’s pay letters, exempt status, and other employment
circumstances, answers common to the class do not
predominate over individual ones.

This lawsuit suffers from two procedural flaws, known colloquially in the
class action jargon as “commonality” and “predominance.” As the late Justice
Antonin Scalia described the commonality requirement in Wal-Mart Stores, Inc. v.
Dukes, “What matters to class certification . . . is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the potential to impede the

171

Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 123 (S.D.N.Y. 2011).

172

Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 355 (N.D. Ill. 2012).

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generation of common answers.”173 Consequently, commonality is not satisfied
merely because the plaintiffs “have all suffered a violation of the same provision of
law.”174 Instead, the class claims “must depend upon a common contention.”175
“That common contention, moreover, must be of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.”176
The next hurdle is predominance. A class action may be certified under
Federal Rule of Civil Procedure 23(b)(3) only if “the court finds that the questions
of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” That rule
enumerates four factors for consideration:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
173

564 U.S. 338, 350 (2011).

174

Id.

175

Id.

176

Id.

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(D) the likely difficulties in managing a class action.
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”177
The United States District Court for the Eastern District of Pennsylvania has
described predominance as the “counterpart” to commonality. 178 Along the same
line, the Third Circuit has stated that “[i]t is often appropriate to discuss
commonality and predominance together because the commonality inquiry is
subsumed into the predominance inquiry.”179 This is because “[p]arallel with Rule
23(a)(2)’s commonality element, which provides that a proposed class must share a
common question of law or fact, Rule 23(b)(3)’s predominance requirement
imposes a more rigorous obligation upon a reviewing court to ensure that issues
common to the class predominate over those affecting only individual class
members.”180 For example, as one federal court has concluded “[i]n short,
certification is not warranted” if “ individual issues relating to eligibility for the
administrative, professional, and highly compensated employee exemptions will

177

Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

178

Coleman v. Commonwealth Land Title Ins. Co. Mitchell, — F.R.D. —, No. CV 09-679,
2016 WL 4705454, at *5 (E.D. Pa. Aug. 17, 2016).

179

Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (McKee, C.J.).

180

Sullivan v. DB Investments, Inc., 667 F.3d 273, 297 (3d Cir. 2011) (Jordan, J.).

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predominate over any questions of law or fact that are common to the class
members.”181
Plaintiffs request that the Court certify various Pennsylvania classes of
general, supervisory, and non-supervisory inspectors to vindicate state law claims
under the Pennsylvania Minimum Wage Act and common law unjust enrichment
allegations.182 “The Pennsylvania Minimum Wage Act [PMWA] mirrors the
FLSA. Based on the ‘identity of purpose’ between those two statutes, Pennsylvania
courts employ the same tests used by the federal courts and use federal case law to
determine the governing standard.”183 Like the FLSA, the PMWA also recognizes
an administrative exemption. “Under the PMWA’s administrative employee
exemption, anyone employed in a ‘bona fide . . . administrative . . . capacity’ is
exempt from the PMWA’s overtime protections.”184
Similar to my analysis above, Plaintiffs do not offer any evidence or likely
sources of evidence that would resolve questions common the class (should such
questions even exist) in one stroke. To the contrary, there is a high probability that

181

In re RBC Dain Rauscher Overtime Litig., 703 F. Supp. 2d 910, 968 (D. Minn. 2010).

182

See ECF No. 126.

183

Jochim v. Jean Madeline Educ. Ctr. of Cosmetology, Inc., 98 F. Supp. 3d 750, 756 (E.D. Pa.
2015).

184

Baum v. Astrazeneca LP, 372 F. App’x 246, 248 (3d Cir. 2010) (quoting 43 P.S.
§ 333.105(a)(5)).

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any such class proceedings would devolve into mini-trials, focused on each
individual inspector’s particular duties, discretion, pay agreements, etc.
The differences that permeate the putative class when viewed through the
FLSA lens are just as pronounced under Rule 23. First, there exist significant
discrepancies among different positions at different worksites. Hours worked, tasks
delegated, and discretion exercised by, for example, a welding inspector in New
Mexico will likely provide very little information as to how those same metrics
apply to a distinct client’s chief inspector in New York. At the very least, Plaintiffs
offer no persuasive justification as to why those answers would be universal to the
class.
The same is true as it applies to liability in general. Individualized questions
clearly will predominate, as this Court will need to review each worker’s pay
agreements, hours worked, days off, and payroll records. Moreover, any two
employees’ circumstances are highly independent. That is to say, whether GIFS
violated or did not violate the FLSA as to one worker bears little upon whether
treatment of any other GIFS employee was lawful or not. Plaintiffs offer no
reasons otherwise, and that heterogeneity is a fatal to class certification.
This line of thinking could be reiterated over and over, just by swapping out
the variable: the amount of discretion an employee exercises; whether the
employee received the same payment each week; whether the employee primarily

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worked in a bona fide administrative capacity; whether the employee performed
manual work; whether the employee took days off; whether the employee was
compensated while away from work; etc. The consequence is the same:
individualized questions predominate over questions common to the class.
It is not enough to argue, as Plaintiffs do here, that the common question is
simply whether or not the employees were paid a day rate. As just illustrated, the
answer to that question depends on a variety of factors and on a number of distinct
sub-questions. Moreover, I have no reason to believe that the answer to that
question as it pertains to any given claimant would be common to any others—let
alone capable of being resolved as to all class members in a single stroke.
To the contrary, Plaintiffs fall well short of offering the kinds of “common
proof” necessary to sustain a class action in federal court. As counsel for
Defendant cogently summarized:
First, Sloane does not submit or even describe the “testimony” or
“representative sample,” making it impossible for the Court to
evaluate whether the evidence would be uniform across the class.
Second, most of this supposedly “common” evidence either does not
exist or is not actually common: there is no relevant “employee
handbook” or “policy on exemption determinations;” pay letters and
rate sheets are irrelevant to the salary basis test, and are not uniform
across the class; “compensation records” are individual to each
inspector; and “job descriptions” are not uniform and, according to
Sloane, do not accurately reflect job duties anyway. In other words,
Sloane’s passing reference to “common proof” does not satisfy his

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burden of showing predominance, and class certification should be
denied.185
That the putative class (or subclasses) both fail the commonality and
predominance requirements is not the stopping point. I note for the record an
additional argument raised by counsel for Defendant’s opposition papers. That
argument calls into question Mr. Sloane’s “typicality.” In particular, Defendant
contends that were this Court to determine that Mr. Sloane actually was guaranteed
a salary, and certainly the evidence points in that direction, then his interests would
be atypical of the interests of any putative class member who actually did receive a
day rate. I agree. Not only would Mr. Sloane lack the requisite motivation to
pursue the class’s overtime claims to fruition in such an instance, but such
divergence in interests would also negatively impact the pertinent exemptions
determination. For that reason, I do believe that, although uncommon, there is a
lurking problem with typicality in this case.
Further, I agree with the Defendant that Plaintiffs’ proposed subclasses are
ill-defined and premature. Not only does it appear that the proposed supervisory
and non-supervisory subclasses may omit certain inspector positions, it also could
be the case that one of those subclasses is entirely an empty set—in other words, it
could be that no member of the putative class is a “non-supervisory” inspector.
That Plaintiffs cannot readily place existing claimants in either bucket is not a good
185

ECF No. 182 at 24–25.

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sign, given the amount of discovery that has already been conducted at this stage.
In addition, there is a sense that defining subclasses so narrowly eviscerates any
hope of preserving judicial economy. If the Court is asked to divvy up supervisors
and non-supervisors, perhaps it will be classifying each worker on an
individualized basis, and what is the point of a class action, where there exists no
common thread, no common stroke among class members?
For the foregoing reasons, class certification under Rule 23 is inappropriate
here, and the corresponding motion will be denied.
2.

Owing to his prior convictions and a lack of forthrightness
with his own counsel, Mr. Sloane is an inadequate
representative, whose propensity for untruthfulness would
taint the fair and efficient administration of justice for the
other putative class members.

“Courts of appeals have held that unique defenses bear on both the typicality
and adequacy of a class representative.”186 In particular, the Third Circuit has
explicitly recognized “the challenge presented by a defense unique to a class
representative—the representative’s interests might not be aligned with those of
the class, and the representative might devote time and effort to the defense at the
expense of issues that are common and controlling for the class.”187 “A proposed

186

Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006).

187

Id. at 297.

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class representative is neither typical nor adequate if the representative is subject to
a unique defense that is likely to become a major focus of the litigation.”188
That a class representative’s personal characteristics may be scrutinized is
nothing new. In fact, one of the earliest and most persuasive statements of this
principle was provided by the late Honorable Malcolm Muir of the Williamsport
division of this Court in 1974. Judge Muir explained that “facts regarding the
personal qualities of the representatives themselves are relevant, indeed necessary,
in determining whether the representative parties will fairly and adequately protect
the interests of the class.”189 According to Judge Muir, “Because absent members
of the class would be conclusively bound by the results obtained by these
representatives and their attorneys, due process requires that they be more than pro
forma representatives.”190 Judge Muir also cited the following applicable passage
from Wright & Miller, before denying certification on the ground of inadequacy:
Quality of representation embraces both the competence of the legal
counsel of the representatives and the stature and interest of the
named parties themselves. The general standard appears to be that the
representatives must be of such a character as to assure the vigorous
prosecution or defense of the action so that the members’ rights are
certain to be protected. Thus courts have looked to factors such as the

188

Id.at 301.

189

In re Goldchip Funding Co., 61 F.R.D. 592, 594 (M.D. Pa. 1974) (internal quotation marks
omitted).

190

Id.

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representatives’ honesty, conscientiousness, and other affirmative
personal qualities.191
In cases involving much less dishonesty and criminal conduct than Sloane,
courts have found plaintiffs to be inadequate class representatives. See Weisman v.
Darneille, 78 F.R.D. 669, 671 (S.D.N.Y. 1978) (“Plaintiff’s conviction and
subsequent conduct here convince us that he lacks the ‘honesty, conscientiousness,
and other affirmative personal qualities’ required of a class representative”);
Kirkpatrick v. Ironwood Communications, Inc., No. C05-1428JLR, 2006 WL
2381797 (W.D. Wash. Aug. 16, 2006) (“Mr. Miller will likely be subject to
multiple attacks on his credibility based on his past crimes. These attacks will
likely severely limit Mr. Miller’s ability to vigorously pursue the interests of absent
class members. For these reasons, Mr. Miller is not an adequate class
representative.”). See also Davidson v. Citizens Gas & Coke Utility, 239 F.R.D.
225, 228 (S.D. Ind. 2006) (adequacy not met due to felony convictions, including
burglary and theft); Maddox & Starbuck, Ltd. v. British Airways, 97 F.R.D. 395,
396-97 (S.D.N.Y. 1983) (criminal conviction precluded plaintiff from being class
representative).
Mr. Sloane has referred to himself as “an alcoholic and addict who made
some irresponsible judgments and decisions.”192 Upon recounting each of his
191

Id. (citing Wright and Miller, FEDERAL PRACTICE AND PROCEDURE, § 1766, pp. 632–634).

192

Decl. of Thomas Sloane, ECF No. 17 Ex.1 ¶ 4.

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criminal history incidents, he notes of a 2010 burglary charge that “Frankly, I do
not remember much at all about that night. I was in an alcoholic blackout.”193
These are not defense counsel’s characterizations; they are Plaintiff’s own words.
Three of Mr. Sloane’s offenses involved burglary or theft, one charge having
followed an attempt by Mr. Sloane to break into a coin laundry machine.194 In
darkly comedic fashion, Mr. Sloane also recounted the facts leading up to a
criminal mischief conviction that he sustained while he was incarcerated:
In 2010, while confined in jail, I was charged and convicted of
Criminal Mischief for having damaged the sprinkler head in my cell.
Four or five of us were sitting around in my cell and someone said
that the sprinkler head would spray foam if you stuck a pencil in it. I
didn’t believe him, so I stuck the point of a pencil in the hole in the
center of the sprinkler head (and it sprayed foam).195
My reasoning holds especially true given that the salary basis issue is a core
component to this litigation. In sum, then, the outcome of this case may turn upon
whether certain workers were paid even for days on which they did not work. This
means that Mr. Sloane’s credibility and his shifting testimony as to the July 2014
weekend will be placed front-and-center for the jury’s determination, following
what I would presume to be a thorough cross-examination by defense counsel.
Thus, those facets of Mr. Sloane’s personal claim is unique to him and uniquely

193

Id. ¶ 5(f).

194

See id. ¶ 5(b), (c), & (f).

195

See id.

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troubling. The propriety of the other putative class member’s claims should not
rightfully rise or fall based on personal credibility determinations.
This Court simply cannot in good faith install Mr. Sloane as the chief
representative of the remaining class members’ interests. This is particularly true,
given that a key triable issue would be whether Mr. Sloane was paid on a salary
basis. Mr. Sloane’s credibility and his shifting story about the July 2014 weekend
will both be central to that determination
V.

CONCLUSION
Consistent with foregoing analysis, Plaintiffs’ motions for certification

pursuant to 29 U.S.C. § 216(b) and Federal Rule of Civil Procedure 23 are denied.
The putative opt-in Plaintiffs are dismissed.
An appropriate Order memorializing my findings and resetting the pertinent
case management deadlines follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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