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Kumar v. Tech Mahindra (Americas) Inc.

United States District Court, E.D. Missouri, Eastern Division

March 25, 2019

PANKAJ KUMAR,
v.
TECH MAHINDRA (AMERICAS) INC., Defendant. and IVAN CRADDOCK, individually and on behalf of all other similarly situated individuals, Plaintiffs,

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Plaintiffs' Motion for Class Certification (Doc. 95), and Defendant Tech Mahindra (Americas) Inc.'s Motion for Decertification (Doc. 116). Because the parties' motions are very closely related, the Court will address them in a single memorandum and order. The motions are fully briefed. (Docs. 107, 110, 117, 131, 137.)

         Background

         Tech Mahindra is a national information technology (“IT”) concern that provides consulting, business process outsourcing, and network technology services. (Doc. 105 at 2.) Its “core business” is IT services for banks, investment firms, telecommunications companies, and railroads, but it serves more than 300 clients throughout the country. (Doc. 95-1 at 3.) Tech Mahindra has roughly 6, 000 employees throughout the United States, grouped into ten “families” based on their job duties and corporate role. (Id. at 3-4.) Plaintiffs[1] are all members of the “IT Delivery” job family, responsible for providing on-site technical services, often inside the client's location. (Id. at 5.) Each job family is subdivided into three “job bands”: E (for executives and directors); P (for managers); and U (for individual team members). (Id.) Each job band is further subdivided based on relative seniority; for instance, an entry-level member of the IT Delivery family would be assigned to the U1 band while someone with several years of experience might be a U4. (See id.) Plaintiffs “all worked in an ‘engineer' role under several different job titles in the IT Delivery job family in the U1-U3 band level.” (Id.)

         Tech Mahindra classifies IT Delivery Engineers as salaried employees who are exempt from overtime protection under the “Computer Professional Exemption.” See, e.g., 29 C.F.R. § 541.400(b). Exemption under the Fair Labor Standards Act (“FLSA”) turns on an employee's “primary duty.” Id. Tech Mahindra argues that IT Delivery Engineers'' primary duties are a combination of activities such as consulting with IT users, and designing, developing, testing, and modifying computer systems or programs. Id. Plaintiffs maintain that their primary duties differ from those listed in the regulations and that therefore they are not exempt. (Doc. 105.) They filed suit to recoup unpaid overtime pay and seek to proceed as a collective action under the FLSA and as a class under the wage and hour laws of Missouri and Washington. (Doc. 105.)

         Certification under § 216(b) of the FLSA

         1. Legal Standard

         The FLSA mandates that an employer must pay an employee one and one-half times his or her hourly rate for all hours worked in excess of forty in one workweek, unless the employer can show that the employee is exempt under the Act. 29 U.S.C. § 207. When an employee believes he was improperly classified as exempt, he may file suit “on behalf of himself . . . and other employees similarly situated” and seek certification under the FLSA to recover unpaid overtime compensation 29 U.S.C. § 216(b).

         Courts in this circuit apply a two-step procedure for certification under the FLSA. See, e.g., Kennedy v. Boulevard Bank, No. 4:12CV40 JCH, 2012 WL 3637766, at *2 (E.D. Mo. August 22, 2012); Ondes v. Monsanto Co., No. 4:11CV197 JAR, 2011 WL 6152858, at *2 (E.D. Mo. Dec. 12, 2011); Perrin v. Papa John's Intern., Inc., No. 4:09CV1335 AGF, 2011 WL 4089251, at *2 (E.D. Mo. Sept. 14, 2011); Beasely v. GC Servs. LP, 270 F.R.D. 442, 444 (E.D. Mo. 2010); Littlefield v. Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, 1016 (E.D. Mo. 2010). First, Plaintiffs move for conditional certification at an early stage in the litigation. Kautsch, 504 F.Supp.2d at 688. The burden for conditional certification is not onerous and the merits of the claims are not considered, id.; Plaintiffs need only make a modest factual showing, based upon the pleadings and affidavits, that the proposed class members were victims of a single decision, policy, or plan. Ondes, 2011 WL 6152858, at *3 (citations omitted). “Once the Court conditionally certifies the class, potential class members are given notice and the opportunity to ‘opt-in.'” Kautsch, 504 F.Supp.2d at 688 (citing Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th Cir. 1995)).

On July 26, 2017, this Court conditionally certified an FLSA class consisting of:
All U1-U3 band IT Delivery Engineers employed by Tech Mahindra who were classified as exempt during any workweek at any time three (3) years prior to October 5, 2016 through the entry of judgment.

(Doc. 46 at 6.)

         The second step of the process occurs when the defendant moves to decertify the class. (See Doc. 116); Ford v. Townsends of Ark., Inc., No. 4:08cv509, 2010 WL 1433455, at *3 (E.D. Ark. Apr. 9, 2010); Beasley, 270 F.R.D. at 444; Dernovish v. AT&T Operations, Inc., No. 09-0015CVWODS, 2010 WL 143692, at *1 (W.D. Mo. Jan. 12, 2010). Typically, this occurs after significant discovery, when the Court can review evidence from both sides before determining whether the plaintiffs are similarly situated. “If the [class members] are similarly situated, the district court allows the representative action to proceed to trial. If not, the district court decertifies the class, dismisses without prejudice the opt-in plaintiffs, and allows the class representative[s] to proceed to trial on [their] individual claims.” Drake v. Steak N Shake Operations, Inc., 286 F.Supp.3d 1040, 1043 (E.D. Mo. 2017) (quoting White v. Baptist Mem'l Health Care Corp., 08-2478, 2011 WL 1883959, at *4 (W.D. Tenn. May 17, 2011)). “The decision to certify or decertify a collective action under section 216(b) is within the district court's discretion.” Id.

         2. Analysis

         Tech Mahindra argues that decertification is proper for two reasons: “First, Plaintiffs . . . cannot establish that they are similarly situated for purposes of the principal inquiry in this case: exempt status”; and “[s]econd, there is no uniform way to determine damages in this case.” (Doc. 117 at 1-2.)

         a. Similarly Situated

         Plaintiffs “bear the burden to show that they are similarly situated, ” Kautsch v. Premier Comm'ns, No. 06-CV-04035-NKL, 2008 WL 294271, at *1 (W.D. Mo. Jan. 31, 2008), either by proving that the employer “engaged in a unified policy, plan, or scheme of FLSA violations, ” or that “their positions are ‘similar, not identical' to the positions held by the other class members.” White v. 14051 Manchester Inc., 301 F.R.D. 368, 372 (E.D. Mo. 2014) (quoting Kautsch, 2008 WL 294271, at *1. Courts analyze three factors to determine whether the plaintiffs are similarly situated: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant that appear to be individual to each plaintiff, and (3) fairness and procedural considerations. 14051 Manchester, 301 F.R.D. at 372 (citation omitted). Similarly situated “does not necessarily mean identical.” Arnold v. Directv, LLC, No. 4:10-CV-352-JAR, 2017 WL 1251033, at *2 (E.D. Mo. Mar. 31, 2017). “[T]he question is simply whether the differences among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected.” 14051 Manchester, 301 F.R.D. at 372 (quoting Baptist Mem'l., 2011 WL 1883959, at *4).

         Tech Mahindra argues that an individual collective-action member's primary duty is dependent on several factors, creating numerous disparities in the collective-action members' factual and employment settings that make a collective-action impracticable and unfair. It also argues that Plaintiffs cannot prove that it imposed a “unified policy, plan, or scheme of FLSA violations” because the exemption analysis is too fact-specific and the factual variance among collective-action members is too great. (Doc. 117.)

         i. Disparate Factual and Employment Settings

         Fifty-eight individuals chose to opt-in to the FLSA collective action, two of them voluntarily withdrew, five did not meet the definition of the conditionally certified collective, and four are time-barred. According to Tech Mahindra, the remaining forty-seven members of the FLSA collective worked in fifteen states holding eight different job titles. (Id. at 4.) The collective has members from all three job bands. (Id.) In addition, members worked under thirty-eight different supervisors for fifteen different customers, on at least 120 individual projects. (Id.) These variables, Tech Mahindra asserts, create significant differences between members of the collective, material variance within the same job title, and even inconsistency in an individual member's personal work experience. (Id. at 6.)

         In support, Tech Mahindra highlights differences in the testimony of several members of the collective. (Id. at 5.) First, Named Plaintiff Kumar concedes that for most of his employment, he did exempt work. (Doc. 95-7 at 1; Doc. 117-2 at 10:13-17.) He spent more than four years as a Software Tester and two years as a Software Test Engineer and Senior Software Test Engineer before he was promoted to Solution Lead, all in St. Louis. (Doc. 95-7 at 5.) He contends that, for a nine-month stretch during which he worked as a U3 Software Test Engineer, he was misclassified. (Doc. 117-2 at 10:9-19, 18:14-21; Doc. 108-3 at 98:1-8.) During that period of time, his primary duty was “to provide hands-on client-facing support in the IT environment for Tech Mahindra's clients, ” by “troubleshooting and fixing issues that may arise with the application, deploying code, compiling production plans, answering questions from the production support team about the production plan and package, and participating in calls and meetings to discuss the status or ongoing issues of a project.” (Doc. 95-7 at 5-6.)

         Meanwhile, Named Plaintiff Craddock testified that, for the first part of his thirteen months at Tech Mahindra, he worked as a U1 Associate Engineer and spent the majority of his time compiling daily and weekly reports, confirming the data, and passing that information to his supervisor. (Doc. 118-4 at 26:1-7, 26:20-27:1.) Working in Washington State, both inside an AT&T office and from home, Craddock later performed computer application testing, with a narrow focus on “troubleshooting and testing the rate plan section of [their client's] website.” (Id. at 10:9-25, 22:23-23:22, 26:20-22.) He never deployed code, compiled production plans, answered questions from the production support team, or had any involvement with the production plan or package-job duties Kumar expressly mentioned. (Id. at 114:24-115:8.)

         U2 Test Engineer Mustafa Baig testified that while he was based in Chicago, he spent forty to fifty percent of his time on the road conducting radiofrequency or “RF” field-testing on mobile devices and applications. (Doc. 118-6 at 63:14-17, 121:9-12, 122:24-123:9.) From his tests, Baig would create error logs and a “defect summary” which he would forward to his supervisor. (Id. at 123:17-22.) Neither Kumar nor Craddock conducted field tests.

         Matthew Foster, who joined Tech Mahindra as a U1 Associate Software Engineer and has since been promoted to U2, testified that he has never field-tested software on mobile devices as Baig did. (Doc. 118-3 at 160:4-6.) Likewise, he did not compile production plans, answer questions from the production support team about the production package, and did not test any web applications like Kumar and Craddock did. (Id. at 159:13-160:6.) Instead, he worked at a desk inside an Atlanta AT&T office, where his job was to “troubleshoot and fix issues that ar[o]se within an application . . . by clearing the logs or . . . reverting the package back to another package.” (Id. at 159:1-7, 160:4-6.)

         Darius Lyles testified that his job was to facilitate the assessment and resolution of “trouble tickets” filed by testers who identified problems with an application. (Doc. 118-5 at 47:4-48:24.) Neither Kumar, Craddock, Baig or Foster testified to doing similar work. Lyles further testified that his work never changed in the four years he was employed by Tech Mahindra, even when he was promoted from U1 Associate Software Engineer to U2 Software Engineer and that he worked exclusively from home. (Id. at 49:11- 20, 66:3-12.) He did not field-test applications like Baig, troubleshoot issues within an application like Foster, or produce reports and troubleshoot websites like Craddock. (Id. at 104:1-105:15.) Nor did he deploy code, compile production plans, or work with the production team or production package like Kumar. (Id. at 104:5-12.)

         Tech Mahindra also argues that there was material variation in job duties among collective-action members who held the same job title. (Doc. 117 at 6.) It compares the declaration made by Plaintiff Kumar with declarations by supervisors who oversaw other U3 Senior Software Engineers Krishna Kovuru and Praneeth M.H.S. (Docs. 95-7, 117-3, 117-4.)

         According to his supervisor, Kovuru was a subject-matter expert and functional consultant for a Tech Mahindra client in Franklin, Tennessee. (Doc. 117- at 1.) In that role, Kovuru spent 60-65% of his time testing and configuring software enhancements in SAP - “enterprise resource planning software.” (Id.) The bulk of his remaining time was spent consulting with the client's business analysts because “he was the [Tech Mahindra] team member primarily responsible for directly interfacing with [the client] to determine [the client's] functional specifications.” (Id. at 2.) Kovuru's work also involved “writing functional test cases, ” working with the client to prepare “project documentation, including statements of work, project work orders, change order, and other deliverables, ” and “exploring options for improving functionality” in the SAP software application. (Id.)

         Meanwhile, Praneeth M.H.S.'s supervisor described the Senior Software ...


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