United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
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,
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 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.”
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.)
under § 216(b) of the FLSA
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).
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.
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.)
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.
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.)
“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).
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.
Disparate Factual and Employment Settings
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.)
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.)
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.)
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.
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
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.)
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.)
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.)
Praneeth M.H.S.'s supervisor described the Senior