[Re: ECF 306]
Plaintiffs, former Hewlett-Packard (“HP”) employees, seek certification of three classes pursuant to Rule 23: Technical Solutions Consultants (“TSCs”) I — III at HP who provided technical support for various arms of HP’s Enterprise and Software Groups in California, Colorado, and Massachusetts. Plaintiffs contend that all of the purported class members perform the same “limited troubleshooting role” pursuant to “regimented procedural guidelines” and that HP misclassified them as exempt, resulting in unpaid overtime wages and other violations of federal and state labor laws. Defendant opposes the motion, arguing that the actual work performed by the purported class members differs significantly and that Plaintiffs have therefore failed to meet their burden to show that the Court could adjudicate their theory without the need for individual inquiries. For the reasons below, the Court DENIES Plaintiffs’ motion.
I. BACKGROUND
A. The Parties
Eric Benedict worked for HP as a TSC III in California from April 2011 to February 2012, Benedict ¶¶ 2-3, ECF 310; Kilricanos Vieira worked as a TSC III in Massachusetts from April 2010 to July 2012, Vieira ¶¶ 2-3, ECF 312; and David Mustain worked as a TSC II in Colorado from December 2008 to September 2013, Mustain ¶¶ 2-3, ECF 811. Plaintiffs allege that HP misclassified them as exempt from overtime pay, and that they and their similarly-situated colleagues routinely worked more than 40 hours per week without overtime pay.
The Court
Defendant Hewlett-Packard Company (“HP”) is a global corporation that provides information technology products and services throughout the world. HP offers a variety of products to a variety of customers: the Software Group (“HPSW’) alone markets 141 different product suites, see Exh. F to Def.’s Mot. to Seal (“Davis”) ¶¶5, 12, ECF 330-15, while the Enterprise Group (“EG”) sells hardware, along with associated operating systems and software, see Exh. Q to Def.’s Mot to Seal (“Kumar”) ¶4, ECF 330-37. HP’s customers range from small businesses to financial institutions, telecommunications providers, hospitals, airlines, manufacturers, government agencies, and other technology companies. See Kumar ¶ 5; Davis ¶ 6; Exh. E to Def.’s Mot. to Seal (“Clemons”) ¶ 3, ECF 330-13.
Generally, HP’s customer have their own IT departments, which are responsible for the routine maintenance, operation, and troubleshooting of HP products within their environments. See, e.g., Davis ¶ 6; Clemons ¶ 4; Kumar ¶ 6. But when the internal IT department cannot resolve an issue, customers can turn to HP’s support engineers. See id. Plaintiffs contend that all purported class members are or were such support engineers.
B. Job Architecture Policy
HP uses a Job Architecture (“JA”) Policy “to organize work and classify employees using a global hierarchy of jobs.” Exh. 1 to Pilotín Deck at 1, ECF 309-1; see also Exh. 2 to Pilotín Deck at HP0002337, ECF 309-2 (“JA provides key inputs for managing the global workforce by classifying work into
New employees, either direct hires or those who join HP through acquisition of a company, are “mapped” to a JA job code based on the individual manager’s view of “best fit” for the employee’s expected work. Albert Depo. at 97:8-98:15.
Under the JA, each job is identified by a unique code and title. The job title maps to three job characteristics: function, family, and level. See Exh. 2 to Pilotín Deck at HP0002346; see also id at HP0002343 (“HP uses [18] Job Functions and [more than 200] Job Families to categorize jobs based on type of work.”); Albert Depo. at 97:10-14.
The functions include: Administration, Legal, Business Planning, Marketing, Corporate Administration, Public Affairs and Communications, Engineering, Quality, Engineering Services, Sales, Finance, Sales Operations, Human Resources, Services, Information Technology, Supply Chain & Operations, Learning & Development, and Technical. Exh. 1 to Pilotín Deck at 1-2. The Job Level also takes into account whether an employee is an “Individual Contributor” or “Management.” See Exh. 1 to Pilotín Deck at 2-3. In addition, HP uses Job Levels to determine whether or not the employee is classified as exempt from overtime pay. Exh. 2 to Pilotín Deck at HP00002339-40; see also Albert Depo. at 123:4-11.
In addition to reflecting the function, family, and level of a job, a job title is generally also accompanied by a job description. That description outlines the job’s responsibilities, scope and impact, complexity, education and experience required, and knowledge and skills. Exh. 2 to Pilotín Deck at HP0002348; see also Albert Depo. at 88:25-89:3 (“the job description [for a particular title] clearly outlines for me what [an employee with that title] is, in terms of the roles and responsibilities, the knowledge, scope and impact, and so forth on.”); id at 134:4-5, 19-21 (job description is meant to describe “primary” or “key duties that you would expect a particular job to have.”).
A worker’s classification within the JA is meant to reflect “the content of the work ... and the level of work that that employee is performing.” Albert Depo. at 97:10-14; see also id at 99:14 (“conceptually, the architecture was designed so that [managers] map the employees based upon the content of the work they’re performing.”); Exh. 2 to Pilotín Deck at HP0002350 (JA classifications are “about the job[,] not the person”); id at BP0002342 (“Global job levels are BP-wide designations that reflect job responsibilities and requirements.”). If the content of an employee’s job changes significantly, his/her manager “remap [s him/her] to reflect that change in responsibilities.” Albert Depo. at 98:7-11.
At the same time, internal HP materials also describe the JA as “a ‘best fit’ system” because the system “includes Global Job Levels that describe a full range of job content levels and Job Families that cover a very broad range of work.” Exh. 2 to Pilotín Deck at HP0002350; see also Albert Depo. at 134:5-8 (“The job descriptions are being used by multiple organizations, multiple countries, so you want to keep it at a general level.”).
C. TSCs Within the Job Architecture
Pertinent to this case, Technical Solutions Consultant (“TSC”) is a job title that falls under the “Services” Job Function and “Customer Solutions Center — Technical” Job Family. Exh. 5 to Pilotín Deck at 1, ECF 309-5. As for Job Level, TSCs I-III are classified as “Individual Contributors” within the three lowest levels — Entry, Intermediate, and Specialty. See Exh. 6 to Pilotín Deck at HP00008435, ECF 309-6. The JA Policy uniformly classifies TSC Is, IIs, and Ills as exempt. Exh. 2 to Pilotín Deck at HP00002340. TSC I, II, and III each has its own job code — 00S30F, 00S30G, and 00S30H, respectively — and its own job description. Exh. 5 to Pilotín Deck at 1-2.
The job descriptions also reveal differences among TSC Is, IIs, and Ills. For example, while a TSC I is responsible for “[b]egin[ing] to partner with and assist the Sales Pursuit team,” a TSC II should “[djevelop” that partí nership, and a TSC III should “partner[] frequently with the Sales Pursuit team.” Exh. 5 to Pilotín Deck at 1-2. In addition, TSC IIs and Ills have responsibilities TSC Is do not share, such as “[e]valuat[ing] unique or complex installations” (TSC IIs) and having the “[ajbility to act as a team or project leader” (TSC Ills). Id. at 2. The knowledge and skills required of TSC IIs and Ills similarly go beyond those for TSC Is. Id. at 3-4.
In addition, the evidence establishes that TSCs I, II, and III are also divided into “tiers.”
D. Internal HP Procedures and Knowledge Bases
HP also maintains “knowledge bases” or repositories of solutions that TSCs have found or developed for customer problems. These knowledge bases are meant to act as resources for other engineers. See, e.g., Exh. K to Def.’s Mot. to Seal (“Grinnell”) ¶ 24, ECF 330-25. HP asks TSCs to consult the knowledge bases when resolving a customer issue. See, e.g., Exh. 18 to Pis.’ Mot to Seal at HP00245485, ECF 305-13 (detailing process to “[sjearch the Knowledge Base for every case”); see also Benedict ¶¶ 10-13; Mustain ¶¶ 10-13; Vieira ¶¶ 10-13. While all TSCs are encouraged to check the knowledge base for solutions, some TSCs are also authorized to add their solutions. See, e.g., Exh. P to Def.’s Mot. to Seal (“Jarosczynski”) ¶ 15, Grinnell ¶ 24. Customers also have access to a selection of the knowledge base articles. See, e.g., Exh. R to Def.’s Mot. to Seal (“Lewis”) ¶ 13, ECF 330-39; Halton ¶ 19.
In addition to the JA and knowledge bases, HP also provides written procedures employees are expected to use in their day-to-day work, such as procedures to open a customer case and modify it in the internal systems. See, e.g., Exh. 11 to Pis.’ Mot to Seal, 305-6 (document detailing how to calculate and reset the Request Date and Time on a ease); Exh. 13 to Pis.’ Mot to Seal, ECF 305-8 (ticket correction procedure); Exh. 16 to Pis.’ Mot to Seal, ECF 305-11 (how to close a case); Exh. 12 to Pis.’ Mot to Seal, ECF 305-7 (step-by-step instructions on how to file a ticket with the Engineering team upon discovering a bug.). HP also has guidelines for how to deal with customers on the phone, including what to do when a customer rejects phone call monitoring, how to set a customer’s hold expectations, and how to end a calk Exh. 22 to Pis.’ Mot to Seal at HP00328025, ECF 305-17; see also Exh. 14 to Pis.’ Mot to Seal, ECF 305-9 (best practices guide for engineer handling of callbacks).
E. Realities of the Workplace
Apart from job descriptions and classifications, the actual day-to-day work of TSC I, II, and III employees is critical to the Court’s determination of the issues presented. The evidence shows significant variety in salaries, education, and experience, as well as day-to-day job function.
Notwithstanding these differences, each Named Plaintiff describes his main responsibilities while working as a TSC similarly. They recall working on “troubleshooting]” or “‘break/fix’ support” accomplished “according to steps and procedures that were required by HP.” Benedict ¶ 9 (“My job was to try to troubleshoot the problems of HP customers ... according to steps and procedures that were required by HP.”); Vieira ¶ 6 (“My main responsibility ... was to troubleshoot problems that HP customers experienced ... in accordance with HP’s policies, procedures, and standard practices.”); Mustain ¶ 9 (“My job was to try to troubleshoot the problems of HP customers ... according to steps and procedures that were required by HP.”).
The evidence
However, the evidence before the Court also reveals significant differences in the actual day-to-day work of TSCs. For example, the “TSC” job title appears to translate into a number of “functional titles.” See, e.g.,
Some TSC I — III roles are proactive, while others are reactive. Managers describe TAMs, for example, as employees who “have a primarily proactive role,” “meet with them client regularly,” “get in front of potential problems,” and “are a liaison for engineers and management,” see Exh. J to Def.’s Mot. to Seal (“Gorden”) ¶ 6, ECF 330-23; see also Clemons ¶ 17; Exh. W to Def.’s Mot. to Seal (“Richardson”) ¶ 16, ECF 330-49 (TAM is a dedicated person assigned to handful of customers and develops intense and ongoing relationship). Like TAMs, RSAAs also work in a proactive role. Id. ¶ 11. One manager refers to RSAAs as “trusted advisor[s].” Id. ¶11.
Employee declarations corroborate this distinction. Srilatha Gyambavantha, a TAM since 2014 and a TSC III with other roles since 2007, explains that she worked in a “reactive” role before becoming a TAM, which is “proactive.” Exh. L to Def.’s Mot. to Seal (“Gyambavantha”) ¶¶ 3-4, ECF 330-27. Rather than react to problems with a customer’s current HP products, for example, Ms. Gyambavantha now makes recommendations for upgrades and discusses a customer’s upcoming projects. Id. ¶ 6. Jeff Gill, also a TAM, similarly explains that, in contrast to a support engineer, he does not respond to one-off incidents and instead meets regularly with customers and advises and trains them on upgrades, new products, and features. Gill ¶¶ 5. Mr. Gill explicitly differentiates his TAM role from that of a support engineer, describing himself as “not in the role of a support engineer” but “[i]n-stead ... as a TAM.” Id. ¶ 3. While both Ms. Gyambavantha and Mr. Gill monitor reactive support cases for their customers, they do not work on the technical support, instead intervening only to escalate issues or handle customer-relationship concerns. Gyambavantha ¶ 7; Gill ¶ 7.
TSCs also differ in the relationships they develop with customers, in terms of both depth and number. While nearly all TSC IIIIs describe working on problems after a customer’s IT department has been unable to solve it and interacting with the customer’s lead IT employees, TSCs who have worked both as TAMs and in other TSC roles describe having a more intimate relationship with customers as a TAM. Jaroszynski ¶ 14 (TSC III describing her work as a part-time TAM for about a year). Like TAMs, RSAAs are also frequently dedicated to one or a handful of customers. Richardson ¶ 11; see also Exh. Z to Def.’s Mot. to Seal (“Stokes”) ¶ 10, ECF 33055. Steven Miranda, a former RSAA, recalls acting as a liaison between his customer and the engineers, “translating” for the customer what the engineers proposed to do and providing advice to each side. Exh. U to Def.’s Mot. to Seal, (“Miranda”) ¶ 6, ECF 330-45. Similarly, Peter Halton, a TSC III who is a NASE, handles a single customer in that role. Halton ¶ 7. Mr. Hal-ton explains that “NASE customers pay a premium to have a Tier 2 engineer in their meetings and on their most critical cases.” Id. In contrast, Mr. Richardson describes a TSS as an employee who “is not assigned to any specific customer account and supports a number of products within a certain product line.” Richardson ¶ 14.
The breadth and scope of the expertise that a TSC develops in his/her time at HP also differs by his/her functional role. Jonathan Stokes, who was previously a RSAA describes the RSAA role as being the lead technical representative to a customer and requiring a comprehensive understanding of the customer’s unique environment and needs. Stokes ¶4. Mr. Halton describes the NASE role as similarly requiring an understanding of the customer’s system and needs in order to solve problems more efficiently and for longer. Id. In addition, Mr.
In contrast, Mr. Stokes describes his current role as a TSS as “different,” with a focus on about 20 products. Stokes ¶ 7. Mr. Richardson describes a TSS as an employee who, “unlike a TAM or a RSAA,” is “a generalist.” Richardson ¶ 14. Monty Burkholder, who does not provide a functional title but is a TSC III and Tier 2 response engineer, supports more than 100 products. Burkholder ¶ 4. Another employee draws the distinction for expertise not by functional title but by tier: Kathleen DiPinto, also a TSC III and Tier 2 engineer, explains that, on her team, “[a]s a [Tier] 2 engineer,” she is “expected to be an expert one or two” products, while “[Tier] 1 engineers ... generally are expected to know a little bit about a lot of products.” DiPinto ¶ 9.
At the same time, many TSCs describe similar work: diagnosing an issue, analyzing different files, conducting research, identifying a root cause, conducting lab testing, and then developing a solution. DiPinto ¶ 8; Burkholder ¶¶ 7,15; Grinnell ¶¶ 10, 11. But their preferred techniques and approaches also vary. Mr. Benedict describes his work as, essentially, searching for error messages in log files. Other TSCs describe such searches as largely unhelpful. See, e.g., Grinnell ¶ 27 (TSC III who finds error codes about 20% of the time and otherwise must assess system behavior); Halton ¶ 15 (TSC III who uses a graphical interface tool instead of searching log lines for warnings and errors); Jagannath ¶ 5 (TSC III who notes that log files do not always contain an actual error message and instead often require analysis to find the problem’s origin).
Finally, some TSCs appear to do almost entirely non-technical work. Managers describe Customer Advocates (“CAs”) as employees who “manage the operations of the group” and are “non-technical employees” who “assign technical cases” and “manage escalation cases to a different engineers for customer satisfaction reasons.” Gorden ¶ 7. At least one employee explains that CAs on his team are responsible for assigning cases to support engineers from the incoming queue and that CAs modify case tickets in HP’s internal monitoring system. Halton ¶¶8, 25. Managers also describe the Duty Manager (“DM”) role, which falls within the TSC umbrella, as largely customer management: A “DM’s job [is] to address [a customer] dispute, calm the customer down, and figure out how to align the appropriate resource within the technical support team to the customer’s need.” Clemons ¶ 31.
With regard to HP’s internal tracking processes, many TSCs beyond the first tier find them irrelevant to them work. See, e.g., Saechao ¶ 19 (certain exhibits are used only by frontline engineers); DiPinto ¶21 (certain exhibits not relevant because she does not create cases). Even those that are familiar with the processes state that they do “not tell me how to do my job.” Multhauf ¶ 15; see also Saechao ¶ 19 (Exhibit 19 relates to only 10% of work). In addition, many TSCs find HP’s internal knowledge bases useless and rarely consult them. See, e.g., Grinnell ¶ 27 (only find a relevant KB article about 20% of the time); Halton ¶ 19 (about 5% of KB articles are helpful or relevant); Lewis ¶ 13 (problems that could be resolved by looking at KB are usually resolved by the customer or a Tier 1 engineer).
B. Legal Claims
Plaintiffs allege that HP misclassified purported class members as exempt from overtime; failed to pay them for hours worked in excess of forty hours per week; and failed to record, report, and/or preserve records of their hours. Plaintiffs assert that this misconduct violates the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., see SAC ¶¶ 67-77, ECF 258. Similarly, Mr. Vieira and Mr. Mustain, representing the purported Massachusetts and Colorado classes, respectively, assert that these actions violated Massachusetts’ Wage and Hour Law, Mass. Gen. Laws Ch. 151 §§ 1A et seq., see SAC ¶¶ 123-135, and Colorado’s Wage Act, Colo.Rev.Stat. §§ 8-4A101, et seq.; Colorado Rev. Stat. § 8-6-118; and 7 Colorado Code Regs. § 1103-1. SAC ¶¶ 136-146. With respect to the purported California Class, Mr. Benedict alleges that these actions violated California Wage Order No. 4-2001 and California Labor Code §§ 510 and 1194
Federal, California, Colorado, and Massachusetts law all provide for exemptions from these requirements, which HP may choose to apply to qualifying classifications. Such exemptions include “administrative” and “professional” exemptions. Massachusetts and Colorado’s versions of these exemptions are treated as equivalent to federal law. See Mass Gen. Laws ch. 151, § 1A(3); 454 Mass. Code Regs. § 27.03(3); 7 Colo.Code Regs. 1103-1:5; Reyes v. Snowcap Creamery, Inc., No. 11-CV-02755,
II. LEGAL STANDARD
Because a “class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” the party seeking to maintain a class action must “affirmatively demonstrate his compliance with Rule 23.” Comcast Corp. v. Behrend, — U.S. -,
Second, the party “must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id. Here, Plaintiffs seek to certify a damages class pursuant to Rule 23(b)(3), which requires that “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.” Fed.R.Civ.P. 23(b)(3). Rule 23 outlines four pertinent factors to the Court’s analysis in determining the appropriateness of a(b)(3) class: the class members’ interest in individually controlling the action; the extent and nature of already-existing litigation regarding the action; the desirability (or lack thereof) of concentrating the litigation of the claims in a single forum; and manageability of the action. See Fed.R.Civ.P. 23(b)(3); see also Hanlon v. Chrysler Corp.,
“[A] court’s class-certification analysis must be rigorous and may entail some overlap with the merits of the plaintiffs underlying claim ... but only to the extent[ ] that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -,
Pursuant to Federal Rule of Civil Procedure (“Rule”) 23, Plaintiffs move for certification of the following classes (“State Classes”):
California Class: All persons employed in California as a Technical Solutions Consultant I, II, or III by BP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2009 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of California.
Colorado Class: All persons employed in Colorado as a Technical Solutions Consultant I, II, or III by BP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2010 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of Colorado.
Massachusetts Class: All persons employed in Massachusetts as a Technical Solutions Consultant I, II, or III by BP’s (1) Enterprise Group, Customer Solutions Center; (2) HP Software Support Delivery / IMBU Support; and/or (3) HP Software Enterprise Security Products organization at any time between January 10, 2010 and the present who was designated an “Individual Contributor” and was classified as exempt from the overtime pay requirements of Massachusetts.
Mot. at 1. The Court now considers whether Plaintiffs have met their burden with regard to Rule 23, beginning with the four requirements of Rule 23(a) and then turning to Rule 23(b)(3).
A. Rule 23(a)
i. Numerosity
Under Rule 23(a)(1), a class must be “so numerous that joinder of all members is impracticable.” Courts have repeatedly held that classes comprised of “more than forty” members presumptively satisfy the numerosity requirement. See, e.g., DuFour v. Be LLC,
Plaintiffs state that, according to BP’s data, the California, Colorado, and Massachusetts classes have 213, 147, and 43 members respectively. Pilotín Decl. ¶¶ 4(a)-(c), ECF 309. Defendant does not dispute these numbers, nor does it challenge the numerosity of the California or Colorado classes.
Defendant does, however, assert that the Massachusetts class presents a numerosity problem. The only argument Defendant offers in support of this position is that “Plaintiffs have not proffered any evidence specific to Massachusetts TSCs beyond the testimony of Vieira and two others ... who were from the same team.” Opp. at 24. Defendant’s argument, although identifying numerosity as a problem, appears to be geared to its challenge of commonality, particularly as Defendant does not challenge the 43 number presented by Plaintiffs. Accordingly, the Court finds that the proposed classes satisfy Rule 23(a)(1).
ii. Commonality
Rule 23(a) next demands “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). “[C]ommonality requires that the class members’ claims depend upon a common contention such that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in
With regard to the class claims for overtime pay, waiting-time penalties, and inadequate wage statements, Plaintiffs proffer two legal questions and six factual questions that they contend are common to the class and capable of classwide resolution. Mot. at 15. The legal questions are: (1) whether any applicable state overtime exemption applies to TSCs, and (2) whether HP failed to maintain adequate time records for Class Members. Id.
Of the six factual questions, the first three apply to all three State Classes. They ask whether: (1) HP uniformly classifies TSCs as exempt from overtime pay requirements, so as to deprive them of overtime pay; (2) TSCs’ duties and responsibilities involve work related to HP’s management policies or HP’s general business operations and (3) TSCs customarily and regularly exercise discretion and independent judgment. The other three factual questions apply only to the California class. They ask whether TSCs: (4) determine hardware, software, or system functional specifications; (5) design, develop, document, analyze, create, test, or modify computer systems or programs based on and related to user or system design specifications; and (6) document, test, create, or modify computer programs related to the design of software or hardware for computer operating systems. Id.
In addition, Plaintiffs proffer the following two common legal questions and two common factual questions with regard to the proposed California Class’ claims for missed meal and rest breaks and unfair competition. Id. at 16. The legal questions are: (1) whether HP violated California’s UCL by violating California’s labor laws and (2) whether HP complied with California’s requirement to provide meal and rest breaks. Id. The factual questions are: (1) whether HP lacks a policy relieving TSCs of all duties so they may take the requisite meal and rest breaks and (2) whether HP failed to pay for missed meal and rest breaks. Id.
Plaintiffs argue that class treatment will generate common answers to these questions because common evidence shows that TSCs have the same primary job duties and are subject to FIP’s uniform JA Policy. Id. at 15-16. In addition, Plaintiffs contend that courts routinely find commonality in overtime miselassification cases where the plaintiff simply alleges that employees faced a common wrong by being “misclassified as exempt.” See, e.g., Greko v. Diesel U.S.A., Inc.,
Though Defendant’s response speaks largely to the stricter common proof requirement of Rule 23(b)(3), discussed below, Defendant also contends that the record establishes substantial variation with respect to Plaintiffs’ miselassification theory that all TSCs perform a “uniformly circumscribed” and “limited troubleshooting role,” thereby precluding even a finding of commonality. Opp. at 19 n. 23. Defendant additionally challenges the Massachusetts Class with respect to commonality, arguing that the Massachusetts evidence is limited to testimony by three employees on one team, which cannot speak to the experience of other teams. Id. at 24.
iii. Typicality
Rule 23(a) next requires that the representative plaintiffs’ claims be typical of those advanced by the class. Fed.R.Civ.P. 23(a)(3). Typicality is “directed to ensuring that plaintiffs are proper parties to proceed with the suit.” Ries v. Arizona Beverages USA
Plaintiffs argue that each Plaintiff was a TSC who received no overtime pay while he was employed as a TSC by HP, and that each Plaintiffs wage and hour claims — that HP required them to perform non-exempt work while classifying them as exempt — are typical of the absent class members. Mot. at 17.
Defendant does not distinguish between typicality and adequacy, but counters that the three named plaintiffs fail both requirements and that the State Classes therefore cannot be certified. Opp. at 23-25. Defendant’s argument regarding Mr. Vieira focuses on typicality, while its challenges to Mr. Benedict and Mr. Mustain are more relevant to adequacy. The Court therefore addresses the challenge to Mr. Vieira below and considers the challenges to Mr. Benedict and Mr. Mustain in its adequacy discussion.
1. Massachusetts (Mr. Vieira)
With respect to the Massachusetts Class, Defendant contends that Mr. Vieira is subject to a unique defense, which defeats typicality. Id. at 23-24. Defendant argues that, prior to this lawsuit being filed, Mr. Vieira received substantial severance pay in exchange for waiving both his substantive state law claims and his ability to bring a class action. As a result, Defendant contends, Mr. Vieira’s claims may be deemed released or barred from being raised as a class action, leaving the Massachusetts class without a representative. Id. at 24. In support of this argument, Defendant offers an unsigned waiver agreement, purportedly belonging to Mr. Vieira. See Exh. 27 to Horner Deck, ECF 329-27. Defendant also provides deposition testimony by Mr. Vieira that he intended to sign the waiver agreement, cannot think of a reason why he did not sign it, and received payment for signing it, but also cannot recall actually signing it. Exh. 23 to Horner Deck (“Vieira Depo.”) at 126:10— 127:7-15, ECF 329-23.
Plaintiffs first argue that Defendant has failed to produce any evidence that Mr. Vieira actually entered into an agreement to waive his ability to bring a class action. See Reply at 13. In addition, Plaintiffs also argue that a proposed class representative’s inadequacy is not a proper basis for denial of certification because the preferred course is substitution of another class member in the inadequate representative’s place. Id.
Defendant also offers Cholakyan v. Mercedes-Benz, USA, LLC, which considered the typicality of a plaintiff whose standing was in question. The court explained that “[wjhile the court has not yet resolved the question, the typicality inquiry does not demand proof that a defense will ultimately defeat the class representative’s claims. Instead, it asks only whether plaintiff is likely to be preoccupied with litigating the defense to the detriment of the class as a whole.” Cholakyan v. Mercedes-Benz, USA, LLC,
In response, Plaintiffs offer two opinions from the Second and Eleventh Circuits: Shahriar v. Smith & Wollensky Rest. Grp., Inc.
While Defendant has failed to offer Mr. Vieira’s signed waiver, the Court finds the evidence sufficient to suggest that Mr. Vieira could become preoccupied with defenses unique to him, thereby derailing the claims of the class. Accordingly, the Court finds that Plaintiffs have failed to satisfy Rule 23(a)(3)’s typicality requirement for the Massachusetts Class. However, if this were the only barrier to class certification, the Court would allow Plaintiff adequate time to present a substitute class representative. The Court proceeds with the remaining analysis for the Colorado and California Classes.
iv. Adequacy of Representation
The final requirement of Rule 23(a) is that the named Plaintiffs “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy determination requires the Court to make two determinations: (1) whether the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) whether the named plaintiffs and their counsel will “prosecute the action vigorously on behalf of the class[.]’ ” Ellis v. Costco Wholesale Corp.,
1. California (Mr. Benedict)
Defendant argues that Mr. Benedict is not an adequate representative for California based on unique issues going to his integrity and credibility. Opp. at 24. Specifically, Defendant argues that Mr. Benedict is insufficiently credible to represent the class because he surreptitiously imaged his work computer in the days before his resignation in obvious breach of his HP confidentiality agreement. Defendant directs the Court to Judge Koh’s Order denying Mr. Benedict’s motion to dismiss Defendant’s breach of contract claim on the basis of similar allegations. See EOF 161.
Defendant relies on Jovel v. Boiron, Inc., No. 11-cv-10803,
In Alakozai, the court considered the adequacy of a named plaintiff who “was statutorily disqualified from securities licensing because he did not disclose that New York state revoked his insurance license for ‘untrustworthy* behavior, and admitted to lying in federal court to increase his chances of recovering against a prior employer.”
Plaintiffs respond that there has been no finding that Mr. Benedict acted improperly. Reply at 14. Rather, they contend, he has provided detailed sworn testimony credibly explaining his conduct and has returned all documents to HP. Id. Plaintiffs offer Mr. Benedict’s deposition testimony, in which he explains that he regularly used his HP laptop at home, kept personal documents on the laptop, and comingled his documents with those of HP in many folders. As a result, he explained that he wanted only his personal data but copied the whole hard drive when he left because he was “running out of time collect [his] personal data.” Exh. 23 to Pilotin Reply Deel. (“July 15, 2013 Benedict Depo.”) 71:10-72:9, 72:20-25, 85:9-20, EOF 348-23. In addition, Plaintiffs offer caselaw to support their argument that even legitimate concerns about Mr. Benedict’s actions should not automatically render him inadequate. See In re Computer Memories Secs. Litig.,
The Court agrees with Plaintiffs. Defendant has failed to show that Mr. Benedict’s challenged conduct was “both significant and related to a material issue.” See Jovel,
2. Colorado (Mr. Mustain)
Defendant argues that Mr. Mustain has also injected extraneous claims into this ease that would distract from any trial, and thus render him atypical or inadequate. Opp. at 25. Defendant explains that, prior to leaving HP, Mr. Mustain was promoted into a different Job Code as a Technology Consultant (“TC”) III and is purporting to pursue his individual claims for time in that non-TSC position as well. Id. Defendants argue that Mr. Mustain’s theory for these additional claims “runs counter to the premise of Plaintiffs’ class theory ... that the Job Architecture is dispositive” because he is asserting that his duties as a TSC and as a TC were the same. Id.
This misrepresents Mr. Mustain’s position. Defendant offers Mr. Mustain’s June 8, 2015 deposition testimony in support of its argument, which shows that Mr. Mustain is asserting an overtime claim for his time as a TC III because “[w ]ith the added job duties of that position, my main focus was still the same as it was when I was a [TSC II].” Exh. 11 to Homer Decl. (“June 8, 2015 Mustain Depo.”) at 60:12-22, EOF 329-11 (emphasis added); see also id. at 23:8-11 (‘Other than the interaction with the end user customer face-to-face ... nothing had changed.”) (emphasis added). This testimony shows that Mr. Mustain does not assert that the job duties of a TSC II and TC III are identical and therefore does not suggest that the JA misrepresents either position; instead, he asserts that, notwithstanding the differences, both jobs should have been classified as nonexempt.
Plaintiffs correctly argue that a named representative is able to represent a class while additionally bringing individual claims where there is no evidence that the individual claims will impair his ability to represent the interests of the class. See, e.g., Satchell v. FedEx Exp., No. 03 Civ. 2659 SI,
In sum, the California and Colorado Classes satisfy all of the requirements set forth in Rule 23(a). The Court therefore turns to the requirements of Rule 23(b)(3) to determine if “a class action would achieve economies of time, effort and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem Prods., Inc. v. Windsor,
B. Rule 23(b)(3)
Rule 23(b)(3) permits a court to certify a class only when two criteria are met: (1) the questions of law or fact common to members of the class predominate over any questions affecting only individual members, see Tyson Foods, Inc. v. Bouaphakeo, — U.S. -,
i. Predominance
“The ‘predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Tyson Foods, Inc. v. Bouaphakeo, — U.S. -,
1. Sources of Common Proof
Plaintiffs argue that they have offered five sources of common evidence that would obviate the need for individualized inquiries for TSCs in the State Classes. First, Plaintiffs argue that HP’s uniform classification of TSCs as exempt constitutes common proof. Defendant does not disagree that TSCs are uniformly classified as exempt, but responds that a blanket policy does not eliminate the need to make individual factual determinations as to how class members actually spent their time. Opp. at 16. In fact, Plaintiffs acknowledge that such “centralized rules” must “reflect the realities of the workplace.” Mot. at 19.
Next, Plaintiffs offer the JA Policy as common evidence because, they argue, it defines who TSCs are and constrains what TSCs do. Plaintiffs contend that, under the JA Policy, HP classifies employees as TSCs “because they all do the same thing” and that a TSC’s job duties are encapsulated by the JA’s uniform job description for a TSC. Mot. at 20. In other words, Plaintiffs contend that the JA not only describes a TSC’s job duties, but also defines and constrains them. Mot. at 20. Defendant, on the other hand, argues that the JA “only provides the kind of general, high-level job descriptions that courts have found insufficient to advance the Rule 23 inquiry.” Opp. at 18.
Defendant contends that, like the uniform exemption policy, the JA Policy may be probative, but it is not dispositive because individualized inquiries would still be necessary. Opp. at 16. To support its position, Defendant relies on evidence showing the diversity of work performed by employees classified as TSCs I-III. Opp. at 18-20. For example, Defendant argues that, contrary to the limited troubleshooting role Plaintiffs describe, some TSCs (i.e., RSAAs and TAMS) engage in proactive planning and advising and serve as HP’s lead technical representative to their customers. Opp. at 19. Even among TSCs who fit squarely within a troubleshooting role, Defendant argues, the work varies depending on the individual’s tier and function, resulting in variations in how much judgment and discretion each employee exercises, as
To this point, the Court notes that the evidence shows a significant variation in the actual work performed by TSCs. Where Plaintiff Benedict and co-worker Ken Shropshire describe their work as “routine” and “clerical” and limited to basic help desk and troubleshooting tasks, other TSCs tell a different story. For example, Monty Burkholder describes his work as including complex performance issues, creating data collection tools, consulting on configurations and proactive improvements and performing root cause analysis, Burkholder ¶¶7-17, ECF 330-9. David Grinnell analyzes network failures, develops work arounds, and recommends hardware replacements. Grinnell ¶¶7-15, ECF 330-25. Kathleen DiPinto tests solutions in the lab and performs root cause analysis. DiPinto ¶¶ 8-16, ECF 330-17.
As their third form of common evidence, Plaintiffs focus on one small piece of the JA. In addition to the broad argument addressed above, Plaintiffs suggest that the functions of the organizations in which Class Members work constitutes common evidence. The Court interprets this as an argument that the TSCs’ “Service” function precludes TSCs I-III from developing, engineering, or consulting with HP customers about HP products because that work is left to jobs under other Job Functions. Defendants respond that the division of job duties is not absolute because certain TSCs collaborate frequently with other parts of the HP organization, such as R & D and Sales. Opp. at 20. As the Court discussed above, the evidence bears out Defendant’s position.
Fourth, Plaintiffs offer HP’s process and technical documents as common proof of TSCs’ uniform job tasks. Mot. at 21. Defendant responds that many declarants, in-eluding Plaintiffs’ opt-ins, report that they either are unaware of these processes, or that the processes are not applicable to them because, for example, they are not the ones creating cases. Opp. at 22.
Plaintiffs’ final source of common evidence for the State Classes is the declarations by the named Plaintiffs and 15 Class Members to corroborate that the common evidence accurately reflects their work duties. To challenge this evidence, Defendant provides declarations by 26 HP employees, including TSCs I — III and their managers. These declarations describe wide variation in the work responsibilities and experiences of TSCs I-III and state that TSCs deviate from HP’s procedures. See, e.g., Grinnell ¶ 16 (“Sometimes I deviate from HP’s established policies and procedures, particularly for customer relations purposes”); Saechao ¶ 16 (“I have discretion to go beyond the SLA provisions to provide after hours support to customers”).
Unique to the California Class, Plaintiff also offers HP’s lack of a meal or rest break policy as common proof. Defendant argues that the mere absence of a written policy is insufficient as common proof and offers declaration by TSCs who state that they had no issue taking such breaks. Opp. at 25 (citing Halton ¶ 27; Gyambavantha ¶ 18; Miranda ¶ 12).
2. Evaluation of Evidence
Both parties rely on In re Wells Fargo Home Mortg. Overtime Pay Litig.,
Thus, the Court finds that the uniform exemption policy offers probative, but not dispositive, common evidence. It suggests that HP considered the employees to be similar at least to some degree, but does not obviate the need for individual inquiries into whether or not FIP’s classification was correct.
Wells Fargo also offers guidance with regard to the value of the JA Policy, the TSCs’ job function, and FIP’s internal process documents as sources of common evidence. “[Cjourts have long found that comprehensive uniform policies detailing the job duties and responsibilities of employees carry great weight for certification purposes.” Wells Fargo,
Therefore, the key question is the extent to which these centralized policies “reflect the realities of the workplace.” Wells Fargo,
As noted above, the uniformity in work duties — or lack thereof — must be relevant to the particular exemptions at issue. See Mario,
3. Exemptions
Common to each administrative exemption is the requirement that the employee perform “work directly related to management policies or general business operation of his/ her employer or his employer’s customers.” See, e.g., 8 Cal.Code Regs. § 11040(2)(a)(i), 29 C.F.R. § 541.200(a). This includes “computer network, internet and database administration,” among other functions. See 29 C.F.R. § 541.201(b). In addition, employees “acting as advisers or consultants to their employer’s clients or customers (as tax experts or financial consultants, for example) may be exempt.” 29 C.F.R. § 541.201(e).
The administrative exemptions also require that the “employee’s primary duty ... include the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.202(a); see also 8 Cal.Code Regs. § 11040(2)(b). “[T]he 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 various possibilities have been considered.” 29 C.F.R. § 541.202(a). Work must relate to “matters of significance,” in contrast to being “clerical” or “routine,” or simply involving following well-established procedures found in manuals or similar sources. 29 C.F.R. § 541.202(b), (e).
In addition, under the law of all three states, computer work can be exempt when it involves, among other things, “the design, development, documentation, analysis, creation, testing or modification of computer systems or programs ... based on and related to user or system design specifications.” 29 C.F.R. § 541.400(b)(2). For Massachusetts and Colorado, this work would fall under the professional exemption. See 29 C.F.R. § 541.400(a), California’s freestanding computer exemption also focuses on these duties. Cal. Lab.Code § 515.5; see also 8 Cal.Code Regs. § 11040(l)(A)(3)(h)(i)-(iv).
4. Sufficiency of Common Evidence
Pursuant to these regulations, “technical support” work may or may not qualify as exempt, depending on the employee’s specific duties. The question before the Court now is not whether the work of the TSCs I — III qualifies as exempt or non-exempt, but rather whether that question can be answered with the common evidence provided by Plaintiffs. The Court concludes that it cannot. Defendants are correct that individual inquiries would be necessary to determine what constitutes each TSC’s primary duty because the evidence shows that TSCs have work experiences that differ in ways that go to the heart of the elements of the exemptions.
The Court finds a comparison of the descriptions provided by TSCs instructive. Take two TSC Ills for example: Mr. Gill and Mr. Shropshire. Mr. Gill is a TAM with nearly 30 years of experience in the tech industry who earns more than [redacted] per year in base salary. He describes doing work that “typically would be handled by consultants out of HP Software’s Professional Services organization.” Gill ¶ 6. Specifically, he is responsible for “customizing the new product to meet the customer’s specific needs, integrating it into the customer’s unique environment, creating a long-term action plan that includes directing the work of the customer’s technical staff and other personnel in implementing the upgrade, training the customer on the new product, and conducting capacity planning and planning the data migration in connection with this project.” Id. In contrast, Mr. Shropshire, formerly a former TSC III and II testified that he did not make decisions about how to solve problems, never determined the exact nature of a problem without referring to the troubleshooting procedure, relied on Tier 3 engineers for solutions and acted as a conduit who made no determinations about what to pass on to the customer. Exh. 10 to Horner Deck (“Shropshire Depo.”) at 112:15-17, 155:12-15, 158:8-159:3,165:1-2, EOF 329-10.
This contrast illustrates the deficiency of each of Plaintiffs’ offered common sources of evidence and the necessity of individualized inquiries to determine whether or not a TSC qualifies for an exemption. With regard to the deficiencies of the common proof, this testimony shows that neither the JA nor a TSC’s function within the HP organization is determinative of his tasks. This is evidenced not only by the differences in Mr. Gill’s and Mr. Shropshire’s descriptions, but also in Mr. Gill’s explanation that he is doing work normally assigned to a different HP organization. With regard to the necessity of individualized inquiries, these two employees show the broad range of tasks performed by TSC I, II, and Ills, from consultants who exercise independent judgment (e.g., Mr. Gill), to others whose performance is limited to rote work without any exercise of judgment (e.g., Mr. Shropshire).
And these differences are not unique to Mr. Gill and Mr. Shropshire. Like Mr. Gill, numerous other TSCs I — III describe
Also like Mr. Gill, a number of TSCs deviate from the policies and procedures that Plaintiffs offer as a source of common proof. See, e.g., Grinnell ¶ 16; Saechao ¶ 16,
Defendants also correctly point out that, even for the TSCs whose work appears similar but includes both exempt and non-exempt work, the proportion of each varies such that an individualized inquiry would be necessary to determine each employee’s primary duty. See, e.g., Exh. N to Def.’s Mot. to Seal, Inghram ¶ 8, EOF 330-31 (20% of cases are routine and can be resolved off top of head); Jagganath ¶¶5, 7 (90% of cases as Level 3 require investigation and analysis; less than 20% of Level 2 cases were straightforward); Grinnell ¶ 9 (95% of cases are not routine); Halton ¶ 17 (routine about 1% of time). See also Gill ¶ 15 (50% proactive work).
In sum, to determine whether or not the TSCs qualify for one of the asserted exemptions, the Court would have to be able to determine from Plaintiffs’ common proof that each employee either does or does not do “work directly related to management policies or general business operation of his/ her employer or his employer’s customers,” does or does not exercise “discretion and independent judgment with respect to matters of significance” as their “primary duty,” and does or does not “design, development, documentation, analysis, creation, testing or modification of computer systems or programs,” among other things. The common evidence Plaintiffs have offered does not suffice to make these determinations. Accordingly, the Court finds that common questions do not predominate. Plaintiffs have failed to carry their burden of demonstrating predominance.
ii. Superiority
“If each class member has to litigate numerous and substantia] separate issues to establish his or her right to recover individually, a class action is not ‘superior.’ ” Zinser,
Accordingly, Plaintiffs’ Motion for Class Certification is DENIED.
Notes
. References to "the Court” encompass actions taken by Judge Koh, to whom this case was previously assigned.
. Declarations and depositions also refer to "tiers” as "levels.” The Court uses "tier” for clarity.
. In their Reply, Plaintiffs argue that the Court should afford the declarations provided by HP from current employees little weight. Reply at 3. Plaintiffs argue that the power differential between employee and employer necessarily makes Defendant’s attempts to contact current employees coercive and the results unreliable. See, e.g., Camp v. Alexander, 300 F.R.D, 617, 622 (N.D.Cal.2014) (compiling cases where "courts have ... noted the potential for coercion in situations where employers contact putative class member employees”). To show coercion in this case, Plaintiffs point to employee testimony that their managers asked them to attend an interview, that employees were told that they could either participate in the lawsuit with Plaintiffs or talk to HP's lawyer, and that employees were also not told that their rights in this lawsuit could be affected by their declarations. Reply at 3-4.
Defendant objects to the depositions Plaintiffs provide in support of their argument regarding
coercion unless Defendant can introduce counter-designations for those depositions. ECF 352. The Court GRANTS Defendant's request to provide counter-designations. These include deposition testimony by declarants that participation was voluntary, see, e.g., 352-2, DiPinto Depo. at 31:1833:11, that they never spoke to their managers after agreeing to participate, id, at 48:14-16, and that they did not think HP would value them more for having testified, 352-3, Grinnell Depo. at 22:5-23:7. Having reviewed the evidence offered by the parties, the Court affords these depositions and declarations the weight they deserve.
In addition, Plaintiffs move to strike Defendant's Notice of Supplemental Authorities filed on February 3, 2016. ECF 367. The Court GRANTS Plaintiffs' motion to strike the unauthorized attorney argument included by Defendant in that Notice and DENIES the motion as to the supplemental authorities, see ECF 365.
. Shahriar reviewed a district court opinion that certified a class without making an express finding regarding adequacy. The Second Circuit upheld the certification, finding that "if, for some reason it is later determined by the court that the representative Plaintiffs are inadequate, the court could substitute another class plaintiff for the representative plaintiff in question."