Rosen, discovery was to have been
completed by January 14, 2000, well before the present motion was filed.
See Order filed November 10, 1999. It is appropriate, therefore, for the
Court to apply a stricter standard in its analysis of the question before
it, and in doing so, finds that plaintiffs have not met their burden.
Plaintiff argue that defendants' "common scheme" in 1997 to deny them
overtime binds the class, making all plaintiffs similarly situated.
However, as defendants correctly point out, what plaintiffs are really
challenging here is defendant's determination that they are exempt under
the FSLA. Defendant classifies all employees it places in grades 9-13 as
exempt, therefore any "plan" or "scheme" which reduces or eliminates
overtime compensation to such employees, if one existed, cannot be
improper on its face. To determine which employees are entitled to
overtime compensation under the FSLA depends on an individual,
fact-specific analysis of each employee's job responsibilities under the
relevant statutory exemption criteria. Therefore, "similarly situated" in
this case must be analyzed in terms of the nature of the job duties
performed by each class member, as the ultimate issue to be determined is
whether each employee was properly classified as exempt.
Plaintiffs have made no showing that the job responsibilities of the
named plaintiffs are the same or similar to those of the remaining
members of the proposed class, or that the opt-in plaintiffs could
properly be classified as non-exempt employees. In fact, plaintiffs do not
even discuss the job responsibilities of the opt-in plaintiffs. Instead,
plaintiffs reference an extremely broad "general connection" all
plaintiffs have to the production of electricity. Defendant, on the other
hand, has pointed to many specific dissimilarities between the job duties
of the name plaintiffs and the opt-in plaintiffs which make certification
as a collective action inappropriate. Defendant references many of the
over 100 fact questionnaires plaintiffs solicited from PSEG employees,
which show that the opt-in plaintiffs hold a wide variety of positions
and perform a wide variety of job duties. See Supplemental Certification
of Theresa Egler ("Egler Supp."), Exhibits 1 through 16. Even employees
who hold the same job title do not necessarily perform the same work.
See Egler Supp., Exhs. 2 and 3. To the extent that any of these employees
may be properly classified as exempt, these potential plaintiffs simply
are not similarly situated with the named plaintiffs.
Plaintiffs points to several age discrimination cases in support of
their argument that class certification is appropriate despite the varied
job responsibilities of all plaintiffs. However, as noted by the court in
Pfaahler v. Consultants for Architects, Inc., No. 99-C-6700, 2000 U.S.
Dist. Lexis 1772, *8-9 (N.D.Ill., Feb. 8, 2000)*fn7, a discrimination
case focuses on whether the defendant had a policy of discriminating
against its employees, therefore, a primary showing of discrimination is
common to all potential claimants, making them similarly situated. The
focus in this action, however, is on the distinction between an exempt
and non-exempt employee. Unlike in a discrimination case, the focus in
not on PSEG's actions, but instead on the nature of the employees' job
duties in the context of the relevant exemption criteria. See id. at *9.
Therefore, a collective action would only be appropriate where "the
plaintiff[s] make some showing that the nature of the work performed by
other claimants is at least similar to [their] own." Id.
In addition to the fact that plaintiffs have failed to make the proper
showing that they are similarly situated to the opt-in plaintiffs, the
Court finds other factors
exist which make this case unsuitable for
collective treatment. First, the scope of the class is dependent upon the
answer to the question that is at the heart of this case — which
employees are properly classified as exempt? Despite all of plaintiffs'
legal engineering, in its essence the proposed class consists of a group
of individuals with different jobs and different job responsibilities who
believe they have been improperly classified as exempt and denied
overtime wages. Indeed, in order to define the class plaintiffs make a
preliminary cut of those employees they themselves have determined are
properly exempt under the law — namely, professionals, supervisors,
and "truly administrative" employees. Thus, plaintiffs are seeking to
have this Court certify a class based upon their own belief as to which
employees do not satisfy any of the exemption criteria — the very
issue to be litigated in this action.
Furthermore, the Court finds that litigating this case as a collective
action would be anything but efficient. The exempt or non-exempt status
of potentially hundreds of employees would need to be determined on a
job-by-job, or more likely, an employee-by-employee basis.*fn8 "[T]he
exempt or non-exempt status of any particular employee must be determined
on the basis of whether his duties, responsibilities and salary meet all
the requirements of the appropriate section of the regulations . . . ."
29 C.F.R. § 542.201(b)(2). Determining whether an employee's duty is
administrative or productive (the distinction which plaintiff primarily
focuses upon) is extremely individual and fact-intensive, requiring "a
detailed analysis of the time spent performing administrative duties" and
"a careful factual analysis of the full range of the employee's job
duties and responsibilities." Cooke v. General Dynamics Corp.,
993 F. Supp. 56, 59-61 (D.Conn. 1997) (discussing the
administrative/production dichotomy and noting that the analysis is
"necessarily fact intensive," "turn[ing] on a careful factual analysis of
the full range of the employee's job duties and responsibilities," and
further noting that "the lines between production and administration
activity are anything but clear"). The individual nature of the inquiry
required make collective treatment improper in this case.
B. Class Treatment Under FRCP 23
Class actions are governed by Federal Rule of Civil Procedure 23. A
proposed class representative seeking class certification must satisfy all
four requirements of Rule 23(a) and must also demonstrate that the action
is maintainable under one of the three categories set forth in Rule
23(b). Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d. Cir.
1998). In addition, a class must be adequately defined so that the
individual class members may be easily identified. See In re School
Asbestos Litigation, 56 F.3d 515, 519 (3d Cir. 1995). For many of the
same reasons that make collective treatment improper, the court finds
that class certification under Rule 23 inappropriate.
Rule 23(a) provides that
[o]ne or more members of a class may sue or be used
as representative parties on behalf of all only if (1)
the class is so numerous that joinder of all members
is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses
of the representative parties are typical of the
claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Fed.R.Civ.P. 23(a). The burden of "establish[ing] that all four
requisites of Rule 23(a) and at least one part of Rule 23(b) are met"
rests with the plaintiff. Baby Neal v. Casey, 43 F.3d 48, 55 (3d. Cir.
1994). Courts must undertake a "rigorous analysis" to ensure that the
and its proposed representative satisfy each of the
prerequisites to class certification. See General Tel. Co. v. Falcon,
457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
In considering whether certification is appropriate, a court must
refrain from conducting a preliminary inquiry into the merits of the
action, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct.
2140, 40 L.Ed.2d 731 (1974). However, it may be necessary for the court
"to analyze the elements of the parties' substantive claims and review
fact revealed in discovery in order to evaluate whether the requirements
of Rule 23 have been satisfied." In re Ford Motor Co. Ignition Switch,
174 F.R.D 332, 353 (D.N.J. 1997).
Plaintiffs have moved for class certification pursuant to Rule
23(b)(1)(A), 23(b)(2), and 23(b)(3). Because the Court concludes that the
commonality and typicality threshold requirements of Rule 23(a) have not
been met and, further, that the class is not adequately defined because
its scope is dependent on the outcome of the litigation, the Court need
not reach the question of whether certification is appropriate under any
of these three subsections.
Rule 23(a) requires that there be questions of law or fact common to
the class. Plaintiffs stress that there exists a "common scheme" that
makes class certification appropriate. However, the claims in this action
for which plaintiffs seek class treatment, namely, violations of state
labor law, are individual in nature. As discussed in detail in the
previous section, the question of whether defendant improperly classified
employees as exempt is unique to each employee and his or her particular
Rule 23(a) also conditions class certification on the plaintiffs
establishing that the legal positions of the representative parties are
"typical" of the absent class members. Plaintiffs' claims meet the
typicality requirement if they "arise from the same event or practice
or course of conduct that gives rise to the claims of the class members,
and . . . [are] based on the same legal theory." Hoxworth v. Blinder,
Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992). Conversely, a
representative's claims would be atypical if his or her "factual or legal
stance is not characteristic of that of the other class members." In re
Milestone Scientific Securities Litig., 183 F.R.D. 404, 415 (D.N.J.
1998). Because of the individualized nature of the factual and legal
inquiry necessary to determine an employees exemption status discussed at
length above, the named plaintiffs "factual or legal stance" cannot be
said to be characteristic of the other class members.
Finally, the Court notes that plaintiffs dedicate a significant amount
of their 83-page brief to addressing the merits of the underlying
action. Argued in great detail is the proposition that PSEG did not
perform the necessary detailed analysis in determining the exemption
status of the plaintiff employees. Further, in an attempt to show that
the seven named plaintiffs are improperly classified as exempt
employees, at least 17 pages of plaintiffs' brief is spent describing
their job duties and how these duties impact upon the production
process. Contrary to plaintiff's intentions, this only further convinces
the Court that the issue at the heart of this litigation requires a
lengthy, individual, detailed, fact-intensive analysis of each potential
claimant's job responsibilities and exemption status. Class or collective
treatment is simply not appropriate in this case. Accordingly,
plaintiff's motion shall be denied.
For the foregoing reasons, plaintiff's motion for collective/class
certification is denied. An appropriate order follows.
Before the Court are is plaintiffs' motion to certify its federal claim
as a collective action under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq., and its state law claim as a
class action under Federal Rule of Civil Procedure 23. Opposition was
filed, and the Court heard oral argument on June 29, 2000. For the reasons
set forth in the attached opinion,
IT IS on this ___ day of August 2000,
ORDERED that plaintiff's motion is DENIED.