United States District Court, D. New Jersey
STEVEN GOODMAN, et. al. Plaintiffs,
BURLINGTON COAT FACTORY, et. al., Defendants.
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
matters come before the Court on several motions of the
parties: Plaintiffs' Motion  to Preclude the
Testimony of Robert Crandall, Pursuant to Daubert v.
Merrell Dow Pharmaceuticals. Inc. 509 U.S. 579 (l993);
Defendants' Motion  to Decertify the Class;
Plaintiffs' Motion  to Certify Class - Final
Certification of Fair Labor Standards Act Collective Action;
and Plaintiffs Motion  To Seal Exhibits Al-Ay of
Plaintiffs' Motion For Final Certification of Fair Labor
Standards Collective Action. This Opinion addresses
Plaintiffs' Motion  To Preclude Testimony of Robert
Crandall and Motion  To Seal.
the course of four non-consecutive days, the Court conducted
a Daubert hearing on the admissibility and
reliability of the testimony of Defendants' expert,
Robert Crandall. In addition, the Court heard argument on
the competing motions to certify and decertify. The Court has
considered the initial written submissions of the parties,
the testimony and arguments presented at the hearings on
December 8-9, 2015 and March 16-17, 2016, and the
supplemental briefing submitted by the parties. The Motion to
Preclude is denied in part and granted in part and the Motion
to Seal is granted.
Factual and Procedural History
Court reincorporates the relevant factual background set
forth in Goodman v. Burlington Coat Factory, No.
11-CV-4395 (D.N.J. Nov. 20, 2012). Burlington is a nationwide
retail department store chain that sells merchandise through
465 brick-and-mortar stores in 44 States across the United
States. Ansara Dep. Tr. 13. The named Plaintiff, Steven
Goodman, worked as an operations manager at Burlington from
approximately August 2005 until August 2009. Goodman Dep. Tr.
911; 182:9. Mr. Goodman alleges that Burlington misclassified
him and other assistant store managers (ASMs) as exempt under
the FLSA and failed to pay them for all hours worked as well
as overtime for hours worked above 40 in a workweek, in
violation of the FLSA. Am. Compl. ¶1.
allege that Burlington's classification of the ASM
position as "exempt" under the FLSA was wrongful,
as ASMs perform non-managerial work "that requires
little skill and no capital investment and their duties and
responsibilities do not principally include any managerial
responsibilities or the exercise of independent
judgment" and ASMs "do not have the authority to
hire or fire other employees, and they are not responsible
for making hiring and firing recommendations."
Id. at ¶ 29. Additionally, Plaintiffs claim
that they spent the majority of their time performing work
typically assigned to employees, such as working on the sales
floor, opening boxes, ticketing merchandise, stocking
shelves, cashiering, unloading trucks, and cleaning the
bathrooms. Plaintiffs complain that they were
required to work more than 40 hours in a workweek and did not
receive overtime compensation.
the testimony of its Rule 30(b)(6) corporate representative,
Burlington indicates that all ASMs are subject to the same
policies and procedures. Burlington creates an employee
handbook, system of core values, code of business conduct and
ethics, and workplace rules and policies that apply to all
Burlington employees regardless of the store's size,
location, or geographic region in which they work. Pls. Mot.
Exs. A, L-R; Ansara Dep. Tr. 36-37, 42-47, 50-55- The same
job descriptions apply to all ASM positions across the United
States, regardless of the store's location, size, or
hours of operation and only one job description is in effect
at any given time. Ansara Dep. Tr. 82-83, 89, 9193. ASMs are
subject to the same training requirements, as Burlington
requires all new ASMs to attend a classroom-style training
program, which is uniform throughout the country and taught
by a Burlington Regional Human Resource Director. Ansara Dep.
Tr. 29-30. Burlington also requires ASMs to complete
computer-based e-learning modules and remain up to date
through Burlington's internal intranet messaging system
"portal.coat.net, " the content of which
is the same for all ASMs across the country. (Ansara Dep. Tr.
69-71; Pis. Mot. Ex. J (E-learning modules)).
Burlington compensates all ASMs in the same manner and
classifies all ASMs as exempt. Burlington's Salary
Guidelines Brochure and Mr. Ansara's testimony both
indicate that all ASMs are paid a fixed annual salary and
they do not receive overtime compensation. Pis. Mot. Ex. K
(Burlington Salary Guidelines Brochure) at BCF 109-110;
Ansara Dep. Tr. 99. Burlington classifies all ASMs as exempt
from the overtime requirements of the FLSA, regardless of the
individual ASM's tenure, the ASM's supervisor or
manager, or the store's location, size, sales volume,
hours of operation. Ansara Dep. Tr. 99-102.
also commissioned an expert to evaluate the nature of the
work that ASMs perform on a daily basis in order to prove
that the ASMs are not misclassified as exempt under the FLSA
and/or not similarly situated in a manner that compels class
certification. Burlington's expert, Robert Crandall, is a
frequent FLSA litigation expert who, infer alia,
re-examines a company's qualitative data, including
scheduling, timekeeping, customer flow, and payroll, and
juxtaposes that data with employee job descriptions,
performance evaluations and current employee declarations to
formulate the likelihood of whether the company has
misclassified certain employee positions. Crandall Curriculum
Vitae, Crandall Report, Attachment A.
as will be discussed further in detail, Crandall created and
implemented a time and motion study to evaluate the daily
tasks performed by randomly selected ASMs in various
Burlington stores. The study observed sixty (60) ASMs who are
not part of the opt-in Plaintiff group and did not include
any discussions with or declarations from these workers.
Crandall's findings are laid out in a statistical
analysis report, replete with attachments and exhibits which
graphically depict his findings. The report is offered by
Burlington as proof that the tasks performed by ASMs are not
only primarily managerial but also demonstrate that the
variance in the manner each ASM performs work significantly
undercuts Plaintiffs' argument that they are similarly
situated for class certification purposes.
voluminous record evidence in this case includes expert
testimony in support of the parties' competing
certification motions. Both expert opinions bear directly on
the Court's final certification considerations.
Plaintiffs move to strike the opinion of Defendants'
expert, Robert Crandall. Because the scope and content of
Crandall's opinion materially impacts the final
certification analysis, the Court will turn its attention to
that motion first so that the contours of the Court's
analysis on final certification are established.
Motion to Preclude Expert Robert Crandall
move to strike Defendants' expert Robert Crandall
pursuant to Daubert, 509 U.S. 579 and Fed.R.Evid.
702. Defendants offer Crandall as a labor studies and complex
data analysis expert for the purpose of testifying to the
daily work activities of ASMs in the Burlington Factory
stores. The opt-in ASMs pursuing final certification aver
that their activities were mischaracterized by Burlington as
primarily performing managerial tasks which exempt them from
overtime pay under the FLSA.
challenge that assertion, Robert Crandall and his team from
Resolution Economics studied the work performed by ASMs on a
daily basis in order to discern the percentage of
Plaintiffs' primary duties that are managerial under the
FLSA. Crandall created a time and motion study and employed a
number of "observers" to study a random population
of ASMs who did not elect to join the class. Crandall opines
that his job was to study and make conclusions related to the
1) the amount of time Burlington ASMs spend performing
managerial duties; 2) whether the data supports the theory
that Burlington's policies, practices, procedures,
training, and supervision resulted in ASMs spending uniform
and consistent amounts of time on the various tasks they
perform and managerial tasks in the aggregate, 3) what
factors influence the tasks that ASMs perform; 4) how
Burlington's business model influences the role of the
ASMs; 5) whether data suggests that Burlington's
expectations that the ASM position is managerial is
reasonable; and, 6) how my findings impact the use of
representative testimony and statistical extrapolation in
connection with class or collective certification and making
team randomly selected a population of sixty ASMs to observe
at various Burlington store locations, careful to avoid any
opt-in Plaintiffs. During the course of one work week,
Crandall's observation team captured 246, 000 work events
during the 2, 473 hours of observation of the ASMs. Crandall
Decl, 3:20-23. Crandall's conclusions are detailed in his
report. In general terms, Crandall concludes that the
observed ASMs allocated more than 50% fifty percent of their
work time to managerial duties, there is a wide variation in
the percentage of time ASMs allocate to managerial/dual tasks
on both a day-to-day and weekly basis, and that the different
cultures, traffic and other attributes in each Burlington
store make it difficult to predict the amount of managerial
time spent by the ASMs as a whole. Id. at 4:1-2;
Crandall Report at 3-9.
move to preclude Crandall's report as unreliable under
the dictates of Daubert.
Federal Rule of Evidence 702 and Daubert
guiding principles that inform the Court's judgment are
found in Federal Rule of Evidence 702 and Daubert,
509 U.S. 579. Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702. Consistent with that Rule,
Daubert established a "trilogy of
restrictions" on the admissibility of expert testimony
relating to scientific knowledge. See Calhoun v. Yamaha
Motor Corp., 350 F.3d 316, 321 (3d Cir.
2003). This "trilogy" consists of
"qualification, reliability and fit." Id.
Here, the issue is whether Crandall's opinions are
reliable; there is no challenge to his qualification or to
the fit of his testimony.
respect to reliability, the focus is on the "principles
and methodology, not on the conclusions that they
generate." Daubert. 509 U.S. at 595. Four
benchmarks help determine whether a theory or technique
qualifies as "scientific knowledge" such that it
will assist the trier of fact. See Id. at
593. The Court considers: (1) whether the theory can be or
has been tested; (2) whether the theory or technique has been
subjected to peer review and/or publication; (3) the rate of
error; and (4) whether the theory or technique has been
generally accepted within the putative expert's
respective community. Id. at 593-94. The Third
Circuit adds other factors, including: (5) the existence and
maintenance of standards controlling the technique's
operation; (6) the relationship of the technique to methods
which have been established to be reliable; (7) the
qualifications of the expert testifying based on the
methodology; and (8) the nonjudicial uses to which the method
has been put. In re Paoli R.R. Yard PCB. Litis., 35
F.3d 717, 742 n. 8 (3d Cir. 1994). When considering these
factors, the Court's inquiry must be a "flexible
reliability factors are not exclusive. They "are
intended to serve only as 'useful guideposts, not
dispositive hurdles that a party must overcome in order to
have expert testimony admitted.'" Yarchak v.
Trek Bicycle Corp., 208 F.Supp.2d 470, 495 D.N.J. 2002)
(quoting Heller v. Shaw Industries, Inc., 167 F.3d
146, 152 (3d Cir. 1999))-With the help of these guideposts,
the Court performs its essential gatekeeper role under
Federal Rules of Evidence 702.
104(a) permits a preliminary inquiry in the form of a
Daubert hearing, wherein the burden of proof on
admissibility of an expert is set at a preponderance of the
evidence. See Fed.R.Evid. 104(a); Daubert, 509 U.S.
at 592 n.10 (referring to Rule 104(a) and holding that such
preliminary "matters should be established by a
preponderance of proof."). The Third Circuit stresses
"the importance of in limine hearings under
Rule 104(a) in making the reliability determination required
under Rule 702 and Daubert." See In re TMI
Litigation, 199 F.3d 158, 159 (3d Cir. 2000) (quoting
Padillas v. Stork-Gamco. Inc., 186 F.3d 412, 417 (3d
Cir. 1999))- The importance of such a hearing is heightened
when either party advances a Daubert challenge
"in the context of a summary judgment motion or where
summary judgment will inevitably be granted if the proffered
evidence is excluded." In re TMI Litigation.
199 F.3d at 159. Fully aware that a "failure to hold [an
in limine] hearing" in this context "may
be an abuse of discretion, " see id (quoting
Padillas. 186 F.3d at 418), this Court set aside
three days for the above-mentioned Daubert
challenges by way of Letter Order. (Letter Order [Dkt. Entry
No. 393], filed Oct. 2, 2015).
December 8 and 9, 2015 and March 16 and 17, 2016, the Court
conducted a Daubert hearing and heard ensuing oral
argument on the pending motions to, inter alia,
flush out concerns with Crandall's report. After
consideration of the written submissions, both pre and post
hearings, and the testimony and arguments advanced at the
hearings, the Court finds that Crandall's report is
generally reliable, but also unreliable in part as follows.
object to Crandall's testimony for several reasons.
First, Plaintiffs complain that Crandall's study did not
include observation of any of the opt-in Plaintiffs and is
inherently unreliable because it considers the wrong universe
of workers. Second, Plaintiffs argue that Crandall's
Report is unreliable because his methodology cannot support
his conclusion that more than 50% percent of the ASMs'
activities are managerial, is based upon speculation, lacks
sufficient foundational evidence and information to support
his conclusions, and has not been subject to peer review.
consideration of the expert report, the testimony offered and
arguments cultivated during the many hours of the
Daubert hearing and subsequent oral argument, and
the thorough written submissions of the parties,
Plaintiffs' motion is granted as it relates to
Crandall's penultimate conclusion that ASMs perform
managerial work a majority of the time and denied as to all
other claims of unreliability. Specifically, the Court finds
that Mr. Crandall cannot opine that certain tasks are
indicative of management because such conclusions lack
sufficient foundational evidence and information to support
his findings. However, the Court finds that Crandall's
method has been subject to peer review and is generally
accepted in the field. In addition, Plaintiffs' claim
that Crandall observed the wrong population of workers, who
are not part of the class, is without merit. The findings as
to the population observed are sufficiently reliable to
inform the potential behavior of the opt-in Plaintiffs.
observations of the sample population are not inherently
unreliable simply because the observed ASMs chose, for
whatever reason, not to opt into the class. Plaintiffs'
chief argument in support of final certification is that
Burlington's comprehensive corporate policies and
procedures define the job duties of the ASMs and It in favor
of a finding that the ASMs are similarly
situated. Using that barometer of similarity,
observation of ASMs, even those who did not choose to opt-in,
is informative and has the sufficient hallmarks of a reliable
study. See Big Lots Stores, Inc., 561F.Supp.2d at
587 (rejecting plaintiffs' argument that
"consideration of evidence from non-opt-in ASMs who hold
the same ASM job position was improper because they were
Third Circuit classified several characteristics as
indicative of a properly conducted survey:
A proper universe must be examined and a representative
sample must be chosen; the persons conducting the survey must
be experts; the data must be properly gathered and accurately
reported. It is essential that the sample design, the
questionnaires and the manner of interviewing meet the
standards of objective surveying and statistical techniques.
Just as important, the survey must be conducted independently
of the attorneys involved in the litigation. The interviewers
or sample designers should, of course, be trained, and
ideally should be unaware of the purpose of the survey or the
Pittsburgh Press Club v. United States, 579 F.2d
751, 758 (3d Cir. 1978) (citing Judicial Conference Study
Group, Handbook of Recommended Procedures for the Trial of
Protracted Litigation, 25 F.R.D. 351, 429 (1960)).
considerations "are non-exclusive, but it remains
essential to consider whether the population and terms were
properly defined, whether the design, questionnaires, and
interviews met objective standards, whether data was
accurately collected and reported, whether data was properly
analyzed, whether the questions asked were unrelated to the
material issues of the case, whether questions were unfairly
leading, and whether questions were confusing." J
& J Snack Foods. Corp. v. Earthgrains Co., 220
F.Supp.2d 358, 369 (D.N.J. 2002) (citing 4 Weinstein's
Federal Evidence § 702.06). Under well-established
statistical principles, the differences between the studied
population and the target population must be not be too great
so as to render the conclusions unreliable, and therefore
inadmissible. See Citizens Fin. Grp., 383 F.3d at
121 (3d Cir. 2004) ("A survey of the wrong
'universe' will be of little probative value in
study satisfies a majority of the considerations identified
in Pittsburgh Press Club, 579 F.2d at 758. Crandall
utilized trained observers to objectively survey a
representative population of workers who labor under the same
corporate policies, procedures and training schemes as the
opt in ASMs. The variations identified by Crandall in the
day-to-day achievement of the duties does not render his
findings unreliable as to the opt-in Plaintiffs, who complain
that their labor is less managerial in nature. Courts in this
Circuit have permitted behavioral evidence of populations
that are not part of the proposed class as reliable evidence
against an opt-in subset of that population. See,
e.g., Resch v. Krapfs Coaches, Inc., Civil
Action No. 11-6893, 2013 WL 4603011, at *6 (E.D .Pa. Aug. 29,
2013) ("[D]efendant does not need to prove that each
plaintiff drove interstate regularly, or even that they have
driven interstate at all; instead, defendant must simply
prove that 'because of company policy and activity, the
driver could reasonably be expected to do interstate
driving.' "); Mendez v. Avis Budget
Group. Inc., No. 11-6537 (JLL), 2017 WL 2672074
(D.N.J. June 21, 2017) (rejecting the argument that the
expert was required to address each way an e-Toll surcharge
might have been disclosed, and concluding that those
arguments go to the weight, as opposed to the admissibility,
of the opinion).
findings as being based upon a class of individuals not named
in the present matter are subject to scrutiny, but in this
instance, such challenges go to the weight and value, not the
inherent reliability. Crandall himself admits that his
findings as to the sample population may not necessarily
inform the experience of the opt-ins.
Q. Are [the opt-ins] the exception to the rule and how many
might fall in one category versus the other as you use the
terms "rule" and "exception."
A. I can't give you an estimate of how many would fall
into any category at this point because I do not have a
listing of all their claimed experiences and how they
estimated their time. I've not evaluated whether or not
they have provided reliable estimates. And if I had such
information, I would then statistically compare their claims
to the distribution of outcomes and from there I can make a
also agrees that he lacks data on opt-ins to make a
comparison to the sample population of ASMs:
Q. With respect to Exhibit 2 [relating to one of the two
constituent groups of ASMs] -
Q. - which you did open to, have you conducted any tests to
determine whether if you sampled the opt-in ASMs, you would
get 53.8 percent managerial in your determination?
Q. But would you expect to see the number - the number of
A. 1 wouldn't be surprised to see that number.
Q. Have you tested to see whether that would be the case?
A. Are you asking have I connected [sic] a study of opt-ins?
I haven't conducted a study of opt-ins.
Q. So you did not conduct any tests that would determine
whether you would get a similar chart to Exhibit 2 or whether
the numbers might look wildly different?
A. I would be surprised if the numbers are wildly different.
This is on the course of looking at, for example, Exhibit 2,
1000 - looks like 271 hours without my glasses on. It's
pretty close to that. You know, that's a lot of time and
that's a lot of people that went into this. And so I
think this is certainly representative of the diversities of
experience you would expect to see and I would expect these
numbers to be that way, yes.
Q. That is your expectation. My question was have you run any
A. Have I compared two data ...