United States District Court, E.D. Wisconsin
DAVID LEE, on behalf of himself and all others similarly situated, Plaintiff,
UL LLC, Defendant.
DECISION AND ORDER
William C. Griesbach, Chief Judge.
David Lee filed suit on behalf of himself and all others
similarly situated against his employer, Defendant UL LLC,
alleging violations of the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201, et seq. Presently before the
court is Plaintiff's motion for contempt and to compel
answers to discovery. Plaintiff asserts that Defendant failed
to sufficiently respond to certain interrogatories and
requests for production of documents. The court held a
hearing on the motion on April 4, 2019, and allowed the
parties to submit supplemental briefing on the matter. The
motion has now been fully briefed and is ready for
resolution. For the following reasons, the court partially
grants the motion.
brought this FLSA collective action on behalf of himself and
all other similarly situated current and former exempt Field
Specialist/Field Engineer employees of Defendant. Am. Compl.
¶ 1, Dkt. No. 33. From November 2007 to March 31, 2017,
Plaintiff worked for Defendant in the position of Field
Specialist in the Fire Equipment Services (FES) Division.
Id. ¶ 17. During this time, Defendant
classified Plaintiff and all other individuals employed as
Field Specialists in the FES Division as well as other Field
Specialists working in Defendant's other divisions as
“salaried, non-exempt” for compensation purposes.
Id. ¶ 18. Effective April 1, 2017, Defendant
changed the Field Specialists' compensation
classification status from “salaried, non-exempt”
to “salaried, exempt.” Id. ¶ 38.
Plaintiff alleges that Defendant also changed the Field
Specialists' job titles from “Field
Specialist” to “Field Engineer” but the job
duties of those positions did not change in any way as they
existed prior to April 1, 2017. Id. ¶¶
alleges that Defendant has an unlawful compensation system
that deprives current and former Field Specialist/Field
Engineer employees of their wages earned for all compensable
work performed each workweek. Specifically, Plaintiff claims
Defendant improperly characterized its current and former
Field Specialist/Field Engineer employees as “salaried,
exempt” for compensation purposes, despite the fact
that these employees primarily perform non-exempt duties each
workweek, and failed to compensate these employees at an
overtime rate of pay for all compensable work performed
beyond forty hours each workweek. Id. ¶ 3.
Plaintiff seeks to certify a class consisting of
[a]ll persons who are or have worked at and/or been employed
by Defendant in the position of Field Specialist and/or Field
Engineer from April 1, 2017 to the present and who have not
been compensated at an overtime rate of pay for all hours
worked in excess of forty (40) hours in a workweek as a
result of Defendant's “salaried, exempt”
Id. at ¶ 54.
Federal Rules of Civil Procedure provide that parties
“may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party . . . [and is of] discoverable matter.”
Fed.R.Civ.P. 26(b)(1). Relevant information includes
“any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or
may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Though the Federal
Rules of Civil Procedure allow broad discovery, discovery
will not be allowed if the requesting party failed to show
the need for the information, compliance with the request is
unduly burdensome or oppressive, or the harm of disclosure
outweighs the need for the information. Fed.R.Civ.P.
seeks documents and information regarding six job titles: (1)
Associated Field Engineer, (2) Field Engineer, (3) Senior
Field Engineer, (4) Field Representative II, (5) Field
Specialist II, and (6) Field Specialist III. Defendant has
produced some documents responsive to Plaintiff's
discovery requests related to Plaintiff and other Field
Specialists and Field Engineers in the FES Division. To the
extent Plaintiff's discovery requests seek information as
to other positions in which Plaintiff never worked, Defendant
argues that Plaintiff is not entitled to this discovery
because the employees in those positions are not similarly
situated to him.
FLSA provides that an action for unpaid minimum wages or
unpaid overtime compensation may be brought “by any one
or more employees for and on behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C.
§ 216(b). FLSA collective actions generally involve a
two-step process in determining whether the representative
plaintiff is “similarly situated” to the putative
collective. See Adair v. Wis. Bell, Inc., No.
08-CV-280, 2008 WL 4224360, at *8 (E.D. Wis. Sept. 11, 2008).
At the first step, the court examines whether the plaintiff
has made “at least a modest factual showing that such
collective action is appropriate” and has demonstrated
a “reasonable basis” to believe that he is
similarly situated to potential class members. Id.
at *3-4. If the plaintiff makes this showing, the court may
conditionally certify a collective action.
other words, to pursue a collective action, Plaintiff must
show that there are other potential plaintiffs who are
similarly situated to him. Although the FLSA does not define
the term “similarly situated, ” courts have found
that “being similarly situated does not require
identical positions of the putative class members; instead,
it requires that common questions predominate among the
members of the class.” Hawkins v. Alorica,
Inc., 287 F.R.D. 431, 439 (S.D. Ind. 2012) (citing
Campbell v. Advantage Sales & Mktg., LLC, No.
09-cv-1430, 2010 WL 3326752, at *3-4 (S.D. Ind. Aug. 24,
2010); Alvarez v. City of Chicago, 605 F.3d 445, 449
(7th Cir. 2010)). In this case, Plaintiff claims that the
putative collective, which consists of employees who perform
inspections for Defendant, were all “victims” of
Defendant's decision to reclassify all employees who
worked as Field Specialists and Field Engineers in salaried,
non-exempt positions as salaried, exempt employees. Am.
Compl. ¶ 69. Because Plaintiff alleges that
Defendant's employees were subject to the same illegal
practices, his discovery requests are relevant to the issue
of whether Plaintiff is in fact similarly situated to the
putative collective and those employees who are not employed
in Plaintiff's division.
Defendant's insistence that the putative collective is
not similarly situated to Plaintiff requires that Plaintiff
obtain discovery to make this showing. See Molina v.
First Lane Solutions LLC, 566 F.Supp.2d 770, 786 (N.D.
Ill. 2007) (“Unless defendant admits in its answer or
briefs that other similarly situated employees exist,
plaintiffs cannot rely on their allegations alone to make the
required modest factual showing.”). Indeed,
“courts routinely allow pre-certification discovery for
the purposes of defining the class and identifying how many
similarly situated employees exist.” Jenkins v.
White Castle Mgmt. Co., No. 12 C 7273, 2013 WL 5663644,
at *3 (N.D. Ill. Oct. 17, 2013) (citing Chavez v. Hat
World, No. 12 C 5563, 2013 WL 1810137, at *2-3 (N.D.
Ill. Apr. 29, 2013); Whiteamire Clinic, P.A., Inc. v.
Quill Corp., No. 12 C 5490, 2013 WL 5348377, at *6 (N.D.
Ill. Sept. 24, 2013)). Defendant cannot on the one hand
contest collective action certification and on the other hand
deny Plaintiff the discovery relevant to whether the
collective action should be certified. Accordingly,
Plaintiff's motion to compel is granted.
also seeks an order finding Defendant to be in contempt of
the court's November 28, 2018 order for its failure to
adequately respond to Plaintiff's discovery requests.
“To prevail on a request for a contempt finding, the
moving party must establish . . . that (1) a court order sets
forth an unambiguous command; (2) the alleged contemnor
violated that command; (3) the violation was significant,
meaning the alleged contemnor did not substantially comply
with the order; and (4) the alleged contemnor failed to make
a reasonable and diligent effort to comply.” United
States SEC v. Hyatt, 621 F.3d 687, 692 (7th Cir. 2010).
“Sanctions for civil contempt are designed either to
compel the contemnor into compliance with an existing court
order or to ...