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Keef v. M.A. Mortenson Co.: US District Court : CIVIL PROCEDURE | LABOR - decertification of FLSA suit; fact-intensive questions, 'underwhelming' potential plaintiff interest

David Keef et al. )
v. ) ORDER
M.A. Mortenson Co. )
Defendant, M.A. Mortenson Co. (Mortenson), moves to
decertify this collective action pursuant to 29 U.S.C. 216(b).
Defendants motion is granted.
I. Background
The facts remain as set forth in the Courts Order of August
4, 2008 [Docket No. 63], conditionally certifying an opt-in class
of Mortenson field engineer employees. At the time the Order was
issued, there were five plaintiff-members. The Order gave
plaintiffs leave to give notice of the actions pendency to
putative class members and afford them an opportunity to join the
The notice was sent, followed by more than 100 direct
telephone calls by plaintiffs counsel seeking additional opt-in
plaintiffs. These efforts yielded five new class members, for a
grand total of ten opt-ins, out of a universe of 312 current and
former field engineers. The arithmetic is incontrovertible: 96.8%
of potential plaintiffs opted against joining this action.
Mortensons motion for decertification followed.
II. Analysis
Under the Fair Labor Standards Act (FLSA), an employer must
give overtime pay to employees who work more than 40 hours in any
work week. The statute, however, specifically exempts employees
employed in a bona fide executive, administrative, or professional
capacity. See 29 U.S.C. 207(a)(1), 213(a)(1). Plaintiffs
claim Mortenson field engineers are entitled to unpaid overtime.
Defendant replies, claiming its field engineers are exempt under
207(a)(1) and 213(a)(1). The merits of plaintiffs claims are not
before the Court at this time.
The present question is whether this case should continue as
a collective action. The FLSA permits an employee seeking unpaid
overtime to sue in behalf of himself . . . and other employees
similarly situated. 29 U.S.C. 216(b). This is not the same as
a class action under Rule 23 of the Federal Rules of Civil
Procedure. Under the FLSA, each potential plaintiff must give
written assent in order to join the action. Courts have found a
collective action offers efficient resolution in one proceeding of
common issues of law and fact arising from the same alleged
wrongful activity. See Hoffman-LaRoche Inc. v. Sperling, 493 U.S.
165, 170 (1989) (analyzing 216(b) in the context of the Age
1As the ADEA incorporates the remedies of 216(b), the Court
relies on cases construing the similarly situated standard in the
context of the ADEA. The Court notes that ADEA collective action
cases present some additional issues not relevant to an FLSA
collective action. See, e.g., Thiessen v. General Electric Capital
Corp., 267 F.3d 1095, 1103 and n.4 (considering whether plaintiffs
made the filings required by the ADEA before instituting suit, and
whether a sufficient link existed between the alleged
[discriminatory policy] and the challenged employment decisions).
Discrimination and Employment Act (ADEA)).1
The term similarly situated is not defined in the FLSA, nor
has it been construed by the Eighth Circuit Court of Appeals. See
Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo.
2008). Absent a recognized definition, courts have typically
attempted to determine whether employees are 216(b) similarly
situated by using a two-stage process. Comer v. Wal-Mart Stores,
Inc., 454 F.3d 544, 546 (6th Cir. 2006); Theissen v. General
Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).
First, the Court conditionally certifies a class to allow notice to
potential class members. Comer, 454 F.3d at 546; see also Mooney
v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003).
Once class members have decided whether to opt in, and
generally after discovery, the Court revisits the question of
whether class members are sufficiently similarly situated to
warrant a collective action. Comer, 454 F.3d at 547; see also
Mooney, 54 F.3d at 1214. At this second stage, the Court reviews
2As noted above, Thiessen also includes the ADEA-specific
factors in its analysis of whether plaintiffs are similarly
several factors, including (1) disparate factual and employment
settings of the individual plaintiffs, (2) defenses which appear
to be individual to each plaintiff, and (3) fairness and
procedural considerations. Theissen, 267 F.3d at 1103.2 This is
a stricter standard than the first-stage inquiry. Id.
Here, plaintiffs argue Mortenson wrongly classified its field
engineers as exempt under the FLSA. In asking the Court to
maintain its preliminary certification, plaintiffs point to the
field engineers common job description, and their uniform exempt
classification. This might suggest they are similarly situated.
This simple formula does not, however, resolve the issue. The
question of whether any particular engineer actually is exempt, and
therefore correctly classified, is an intensely fact bound and
case specific question. Rutlin v. Prime Succession, Inc., 220
F.3d 737, 740 (6th Cir. 2000). The FLSA exempts those working in
a bona fide executive, administrative, or professional capacity
from overtime pay. 29 U.S.C. 213(a)(1). But a bona fide
executive, administrative, or professional capacity is another
undefined statutory term.
In attempting to assess whether the bona fide exemption
applies to a particular employee, the Court inquires into the
employees day-to-day activities and responsibilities, as
contemplated in regulations set forth by the Secretary of Labor.
See Fife v. Harmon, 171 F.3d 1173, 1175 (8th Cir. 1999); 29 C.F.R.
Federal regulations afford the administrative exemption to
employees [w]hose primary duty includes the exercise of discretion
and independent judgment with respect to matters of significance.
29 C.F.R. 541.200. The professional exemption applies to
employees [w]hose primary duty is the performance of work . . .
[r]equiring knowledge of an advanced type in a field of science or
learning customarily acquired by a prolonged course of specialized
intellectual instruction. 29 C.F.R. 541.300(a). Determining an
employees primary duty requires consideration of all the facts
in a particular case. 29 C.F.R. 541.700(a). The regulations
clearly contemplate an individualized inquiry into each plaintiffs
job responsibilities.
And so, the Court returns to the question of whether
plaintiffs are similarly situated. Plaintiffs suggest
defendants decertification motion is premature, arguing too little
discovery has been taken. While there has been limited discovery,
plaintiffs are incorrect. The identities of the five original and
five opt-in plaintiffs are known. Prior to the Courts conditional
certification, Mortenson submitted evidence of the differences
between the responsibilities of the first five plaintiffs. See
Defendants Response to Plaintiffs Motion for Conditional
Certification [Docket No. 40] at 21-39, and exhibits cited therein.
For example, the plaintiffs work in different groups or on
different projects within a group, and they report to different
supervisors. Id. at 23-30 and 33-35. Some have only a few months
on the job, while others have worked there for years. Id. at 30-
32. Some use their educational background extensively in their
work, while others do not. Id. at 37-38. Some perform well and
are given the opportunity to use greater discretion; others perform
less well and receive less significant work. Id. at 35-36.
Plaintiffs bear the burden of demonstrating that, despite
these differences, a collective action is justified. Courts have
held that where individualized determinations are required,
certification of a FLSA collective action is inappropriate. See
Rutlin, 220 F.3d at 740. The question of whether any given
engineer is exempt is highly individualized. The potential benefit
from trying these cases as a collective action is not at all clear.
Indeed, it seems likely that trying ten cases simultaneously would
complicate any nuanced inquiry.
The Court cannot be unmindful of the potential class members
underwhelming enthusiasm for this action. As noted in the prior
Order, conditional certification merely gives the parties an
opportunity to see whether Mortensons field engineers are
interested in pursuing this claim. (Order of August 4, 2008, at
5.) Clearly, most are not. In view of the fact-intensive inquiry
required for each plaintiff, and the limited number of potential
plaintiffs who have chosen to opt-in, the Court exercises its
discretion and concludes an FLSA collective action is
inappropriate. Rather, it is appropriate to dismiss without
prejudice the claims of those plaintiffs who have opted-in, and to
allow each case to proceed individually.
III. Conclusion
For all of the foregoing reasons, defendants motion to
decertify [Docket No. 93] is granted. This action is no longer a
collective action. The opt-in plaintiffs claims are dismissed
without prejudice.
In the event any opt-in plaintiff elects to file an individual
complaint, those cases will be assigned to this Court.
Dated: February 23, 2009
United States District Judge


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