IN THE UNITED STATES DISTRICT COURT FOR THE … · PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF ... Case 3:14-cv-00956-JBA Document 314 Filed 08/12/16 Page 1 ... more than

OUTTEN & GOLDEN LLP

Jahan C. Sagafi*

One Embarcadero Center, 38th Floor

San Francisco, CA 94111

Telephone: (415) 638-8800

Michael J. Scimone*

Michael N. Litrownik (ct28845)

Elizabeth V. Stork*

3 Park Avenue, 29th Floor

New York, New York 10016

Telephone: (212) 245-1000

SUSMAN, DUFFY & SEGALOFF, P.C. Karen B. Kravetz (ct19665)

P.O. Box 1684

New Haven, CT 06507

Telephone: (203) 624-9830

Attorneys for Plaintiffs, the Collective, and the

Proposed Classes

*admitted pro hac vice

FEINBERG, JACKSON, WORTHMAN

& WASOW LLP

Todd Jackson*

Genevieve Casey*

476 9th Street

Oakland, CA 94607

Telephone: (510) 839-6824

LIEFF CABRASER HEIMANN &

BERNSTEIN LLP

Kelly M. Dermody*

Daniel M. Hutchinson*

Lin Y. Chan*

Michael Levin-Gesundheit*

275 Battery Street, 29th Floor


Telephone: (415) 956-1000

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

JOSEPH STRAUCH and TIMOTHY COLBY,

CHARLES TURNER, and VERNON CARRE,

individually and on behalf of all others similarly

situated,

Plaintiffs,

v.

COMPUTER SCIENCES CORPORATION,

Defendant.

No. 14 Civ. 956 (JBA)

PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 3:14-cv-00956-JBA Document 314 Filed 08/12/16 Page 1 of 17

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

I. CSC’s Evidentiary Showing Relies on Distinctions Without Difference ........................... 1

A. The Parties Agree About What SAs Do, Posing Common Legal Questions.......... 2

B. Many Purported Differences Are Irrelevant to the Exemption Analysis ................ 3

1. SAs Do Similar Work, Albeit on Different Computer Systems ................. 3

2. There Is No Evidence That Salary Correlates with Exempt Status ............ 3

3. Evaluations, Resumes, and Job Profiles Do Not Defeat Certification ........ 3

C. No SA’s Primary Duties Consist of Exempt Work ................................................ 4

1. SAs Consistently Testified to Nonexempt Troubleshooting Tasks ............ 5

2. All SAs Use Well-Established Techniques................................................. 6

3. SAs’ Work Is Uniformly Supervised .......................................................... 7

4. SAs’ Primary Duty Does Not Involve Advising Clients ............................ 8

II. The Exemption Tests Are Identical for Each Member of Each State Law Class ............... 9

III. The Classes Are Ascertainable and Trial Will Be Manageable .......................................... 9

A. CSC’s Ascertainability Argument Raises a Premature Damages Issue .................. 9

B. Class Trial Will Be Manageable and Superior to the Next-Best Alternative ....... 10

CONCLUSION ............................................................................................................................. 10


iii

TABLE OF AUTHORITIES

CASES PAGE(S)

Ale v. Tenn. Valley Auth.,

269 F.3d 680 (6th Cir. 2001) ......................................................................................................... 4

Asp v. Milardo Photo., Inc.,

573 F. Supp. 2d 677 (D. Conn. 2008) ............................................................................................ 9

In re BAJ Corp.,

42 B.R. 595 (Bankr. D. Conn. 1984) (Shiff, J.) ............................................................................. 2

Benedict v. Hewlett-Packard Co.,

314 F.R.D. 457 (N.D. Cal. 2016) ................................................................................................... 2

Bothell v. Phase Metrics, Inc.,

299 F.3d 1120 (9th Cir. 2002) ....................................................................................................... 9

Callalari v. Blackman Plumbing Supply, Inc.,

307 F.R.D. 67 (E.D.N.Y. 2015) ..................................................................................................... 9

Comcast Corp. v. Behrend,

133 S. Ct. 1426 (2013) ................................................................................................................... 9

Cruz v. Lawson Software, Inc.,

764 F. Supp. 2d 1050 (D. Minn. 2011) .......................................................................................... 3

Damassia v. Duane Reade, Inc.,

250 F.R.D. 152, 156, 160 (S.D.N.Y. 2008) ................................................................................... 2

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006)........................................................................................................... 9

Duffie v. The Mich. Grp., Inc.,

No. 14 Civ. 14148, 2016 WL 28987 (E.D. Mich. Jan. 4, 2016) .................................................... 4

Fuller v. Fried, Frank, Harris, Shriver, & Jacobson LLP,

No. 09 Civ. 1137, 2012 WL 640809 (D.D.C. Feb. 29, 2012), aff’d, 2012 WL

5897134 (D.C. Cir. Oct. 18, 2012) ................................................................................................ 2

Grills v. Hewlett-Packard Co.,

88 F. Supp. 3d 822 (N.D. Ohio 2015) ............................................................................................ 6


iv

Heffelfinger v. Elec. Data Sys. Corp.,

No. 07 Civ. 101, 2008 WL 8128621 (C.D. Cal. Jan. 7, 2008), aff’d and

remanded, 492 F. App’x 710 (9th Cir. 2012) ................................................................................ 2

Hendricks v. J.P. Morgan Chase Bank, N.A.,

677 F. Supp. 2d 544 (D. Conn. 2009) ............................................................................................ 9

Hunter v. Sprint Corp.,

453 F. Supp. 2d 44 (D.D.C. 2006) ................................................................................................. 9

Jacob v. Duane Reade, Inc.,

602 F. App’x 3 (2d Cir. 2015) ..................................................................................................... 10

Jacob v. Duane Reade, Inc.,

No. 11 Civ. 160, 2016 WL 3221148 (S.D.N.Y. June 9, 2016) ...................................................... 4

Longlois v. Stratasys, Inc.,

88 F. Supp. 3d 1058 (D. Minn. 2015) ............................................................................................ 6

Myers v. Hertz Corp.,

624 F.3d 537 (2d Cir. 2010)........................................................................................................... 1

Norflet v. John Hancock Life Ins. Co.,

No. 04 Civ. 1099, 2007 WL 2668936 (D. Conn. Sept. 6, 2007) ................................................... 9

Novak v. Boeing Co.,

No. 09 Civ. 1011, 2011 WL 7627789 (C.D. Cal. Dec. 19, 2011) ................................................. 2

Robinson v. Metro-N. Commuter R.R. Co.,

267 F.3d 147 (2d Cir. 2001)......................................................................................................... 10

Spencer v. No Parking Today, Inc.,

No. 12 Civ. 6323, 2013 WL 1040052 (S.D.N.Y. Mar. 15, 2013) ................................................ 9

Turner v. Human Genome Sci., Inc.,

292 F. Supp. 2d 738 (D. Md. 2003) ............................................................................................... 6

Tyson Foods, Inc. v. Bouaphakeo,

136 S. Ct. 1036 (2016) ..................................................................................................................... 9

In re U.S. Foodservice Inc. Pricing Litig.,

729 F.3d 108 (2d Cir. 2013)......................................................................................................... 10

Vaquero v. Ashley Furniture Indus., Inc.,

No. 13 Civ. 56606, 2016 WL 3190862 (9th Cir. June 8, 2016) .................................................... 9


v

Williams v. Lockheed Martin Corp.,

No. 09 Civ. 1669, 2011 WL 2200631 (C.D. Cal. June 2, 2011) ................................................... 3

Statutes

Connecticut Minimum Wage Act ........................................................................................................ 9

Fair Labor Standard Act....................................................................................................................... 9

Other Authorities

29 C.F.R. § 541.201 ............................................................................................................................. 8

29 C.F.R. § 541.202 ......................................................................................................................... 3, 6

29 C.F.R. § 541.400 ............................................................................................................................. 8

Federal Rule of Civil Procedure 23 ........................................................................................... 1, 9, 10


INTRODUCTION

Plaintiffs’ common evidence – job descriptions, policy and procedure documents, and

CSC’s and System Administrators’ (“SAs’”) detailed testimony – consistently shows that SAs

perform similar primary duties with similarly constrained discretion. They rely on well-

established techniques and procedures drawn from manuals, their own knowledge, or the

internet. None of them are programmers, system analysts, architects, or engineers.

CSC’s critique suffers from three main deficiencies. First, CSC focuses on differences

that are irrelevant to the class certification analysis, such as the technologies SAs support, their

team structures, and their salaries. Second, CSC mischaracterizes testimony from SAs – most of

whom CSC selected – by taking it out of context or exaggerating it. Third, CSC relies on the

same common evidence as Plaintiffs, but asks the Court to view it through a different lens. In

other words, the parties largely agree on the applicable evidence, but advance different

arguments about its meaning. CSC thinks the evidence shows that SAs are exempt; Plaintiffs do

not. That dispute is exactly what a class trial will resolve.

CSC’s other arguments (questioning the uniformity of the state law legal tests,

ascertainability, and manageability) also fail.

Unlike tech worker cases with less-developed records, the evidence here shows that

common facts tie SAs together, making a class action an efficient way to resolve their claims.

I. CSC’s Evidentiary Showing Relies on Distinctions Without Difference.

CSC’s attack on class certification relies largely on irrelevancies. In Myers v. Hertz

Corp., 624 F.3d 537 (2d Cir. 2010), the Second Circuit held that Rule 23 misclassification cases

are properly certified where there is “evidence tending to show that the plaintiffs’ jobs were

similar in ways material to the establishment of the exemption criteria.” Id. at 549 (emphasis

added). CSC claims to find differences in the size of SAs’ workgroups, education, experience,


2

and clients, Def.’s Exs. 41, 50, 51, 52, but fails to explain how those distinctions are material to

whether CSC can prove that SAs fit within the narrow overtime exemptions.

A. The Parties Agree About What SAs Do, Posing Common Legal Questions.

The parties fundamentally agree about what SAs do, while interpreting SAs’ work

differently. CSC’s “Primary Job Duties” compendium tracks Plaintiffs’ description of SAs’

work doing server, application, and desktop/laptop support.1 This poses the common legal

question of whether those job duties are exempt or not.

SAs do not need to perform identical duties to satisfy commonality and predominance,

contra Def.’s Br. 5, just a similar mix of duties.2 It does not matter that some SAs do server

support, some do application support, and some do desktop support, so long as those variations

do not affect whether they meet the exemptions. Unlike in Benedict v. Hewlett-Packard Co., 314

F.R.D. 457, 477-78 (N.D. Cal. 2016), where some employees wrote code, advised clients, and

exercised judgment while others did routine work, or Novak v. Boeing Co., No. 09 Civ. 1011,

2011 WL 7627789, at *3-4 (C.D. Cal. Dec. 19, 2011), where some “programmer/ analysts” did

1 See “Primary Job Duties,” ECF No. 309-42; Declaration of Jahan C. Sagafi in Support of Plaintiffs’

Reply Brief (“Sagafi Decl.”) Ex. 82 (Review of Exhibit 42). Unless otherwise noted, all exhibits are

attached to the Sagafi Declaration. CSC’s “Summaries of Evidence,” ECF Nos. 309-40-60, are little

more than unstructured deposition digests. Moreover, their characterizations of the testimony cited are

frequently incomplete, inaccurate, or support Plaintiffs’ arguments. See Exhs. 82-88. In any event, the

Court may disregard these exhibits in light of the fact that CSC has failed to organize the cited testimony

into a coherent structure that supports its arguments. See In re BAJ Corp., 42 B.R. 595, 597 (Bankr. D.

Conn. 1984) (Shiff, J.) (“it is not [a] court’s obligation to sift through evidence to find support for a

litigant’s position”); Fuller v. Fried, Frank, Harris, Shriver, & Jacobson LLP, No. 09 Civ. 1137, 2012

WL 640809, at *2 (D.D.C. Feb. 29, 2012), aff’d, 2012 WL 5897134 (D.C. Cir. Oct. 18, 2012) (“a district

court should not be obliged to sift through hundreds of pages of depositions, affidavits, and

interrogatories in order to make [its] own analysis”) (internal quotation marks omitted). 2 See Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156, 160 (S.D.N.Y. 2008) (“largely consistent” job

duties satisfied predominance); Heffelfinger v. Elec. Data Sys. Corp., No. 07 Civ. 101, 2008 WL

8128621, at *26 (C.D. Cal. Jan. 7, 2008), aff’d and remanded, 492 F. App’x 710 (9th Cir. 2012) (“that

information technology workers perform varying tasks is not relevant unless some of [their primary

duties] are exempt”).


3

programming, system design, and architecture, here none of the SAs are computer analysts,

programmers, engineers, or high-level administrators.3

B. Many Purported Differences Are Irrelevant to the Exemption Analysis.

1. SAs Do Similar Work, Albeit on Different Computer Systems.

It is irrelevant that SAs support different systems. Def.’s Br. 5-7. SAs’ core job duties

are similar, whether they configure Linux or Windows servers: they maintain and install

computer systems by fixing repetitive problems and doing rote installations within parameters set

by CSC architects, relying on their experience.4 No SA’s primary duty was to design systems,

write computer code, or create system architecture.5

2. There Is No Evidence That Salary Correlates with Exempt Status.

CSC fails to show that different salaries equate to different primary job duties. Salary

differences may arise from factors independent of job duties, including negotiated starting salary,

tenure, geographical differences in cost of living and job markets, managerial discretion, or

varied compensation norms among CSC’s clients.

3. Evaluations, Resumes, and Job Profiles Do Not Defeat Certification.

Courts widely recognize that self-evaluations, resumes, and job profiles are unreliable

evidence of exemption status because they are self-promotional, aspirational, and not limited to

3 See Pls.’ Mot. III.D.1.-3; see also Williams v. Lockheed Martin Corp., No. 09 Civ. 1669, 2011 WL

2200631, at *11-12 (C.D. Cal. June 2, 2011) (testimony showed that job duties required system design

and analysis); Cruz v. Lawson Software, Inc., 764 F. Supp. 2d 1050, 1063-64 (D. Minn. 2011) (problem-

solving required independent discretion and judgment). 4 See Pls.’ Mot. III.D.1.-2.; Ex. 110 (Nall Tr.) 48:4-49:13 (Linux); Ex. 104 (Kettler Tr.) 36:15-25, 84:2-12

(Windows). That, e.g., some SAs did not participate in SRTs, see Def.’s Br. 19-20, reflects the fact that

SRTs restore servers. All SAs who support servers were familiar with SRTs. See Pls.’ Mot. III.B. 5 See Pls.’ Mot. III.D.3. That “SAs have often not even heard of Catalyst,” Def.’s Br. 17, tends to show

they do not “formulate, affect, interpret, or implement . . . operating practices.” 29 C.F.R. § 541.202.


4

primary duties.6 Despite resume puffery, Def.’s Br. 13-14, SAs overwhelmingly testified under

oath that they performed rote maintenance on servers, applications, and computers.7 At most,

these documents raise credibility questions for trial, but do not defeat class certification.

C. No SA’s Primary Duties Consist of Exempt Work.

CSC exaggerates the evidence to suggest that SAs perform varying levels of exempt

work. For example, CSC lists impressive-sounding responsibilities that it claims some SAs were

“involved in,” Def.’s Opp. 7-8; the relevant test is not what SAs were involved in, but rather

what their primary duty was. None of CSC’s evidence accurately reflects the full record, which

shows that SAs primarily performed rote work inconsistent with CSC’s description.8 Nor does it

support CSC’s claim that Plaintiffs “dumb-down” the work SAs perform. Def.’s Br. 8.9

6 See Ale v. Tenn. Valley Auth., 269 F.3d 680, 689 n.2 (6th Cir. 2001) (resumes are “designed to enhance

the employees[ʼ] duties . . . .”); Jacob v. Duane Reade, Inc., No. 11 Civ. 160, 2016 WL 3221148, at *5

(S.D.N.Y. June 9, 2016) (self-evaluations “likely contain puffery”); Duffie v. The Mich. Grp., Inc., No. 14

Civ. 14148, 2016 WL 28987, at *8 (E.D. Mich. Jan. 4, 2016) (“the Court is loath to use a résumé, in

which applicants often use a recommended mix of action verbs and even slight puffery, as evidence of a

plaintiff’s actual job duties”). 7 See Pls.’ Mot. III.D.1.-2.; see also Ex. 123 (Thatch Tr.) 165:16-167:1 (“What in the world? I’m just

trying to get a job, man.”). CSC’s Exhibit 59, ECF No. 309-59 (“Credibility of Opt-in Plaintiffs”) cites

additional testimony that SAs’ evaluations and resumes exaggerate their duties. 8 For example, Smith did not “design . . . Middleware systems,” she participated in discussions of, e.g.,

“how many installations of WebLogic we would need . . . .” Ex. 119 (Smith, P. Tr.) 70:2-71:9. SAs’ role

in “analyzing problems” consisted of searching Google to find fixes to common error codes or sending

system logs to a vendor for them to solve the problem. Ex. 105 (Kinnas Tr.) 35:22-36:12; 43:2-8. Masal

did not “develop[] processes . . . to facilitate security compliance,” she ran security scans and documented

her work. Ex. 129 (Masal Decl.) ¶ 7. Perry “detect[ed] system security vulnerabilities” by “copying and

pasting . . . information” from a third-party report into an action plan that he submitted for CSC approval.

Ex. 115 (Perry Tr.) 94:8-97:12; 112:14-20. Combs’ “code writing” consisted of writing two scripts – one

to “calculate[] a percentage” and one to “color code events” on a calendar. Ex. 99 (Combs Tr.) 51:13-

52:10. DeLira was “never a project lead;” she coordinated with clients to see how many laptops they

needed. Ex. 101 (DeLira Tr.) 89:11-92:13. Rosborough wrote “architect” on his resume as a “fluff term”

– he actually built and configured servers. Ex. 116 (Rosborough Tr.) 177:6-178:18. 9 Although Kinnas agreed that “technical issues” can arise in installing servers, he testified that if a

technical issue occurred, he would ask his colleagues what procedures they had used to address it in the

past or would Google it. Ex. 105 (Kinnas Tr.) 133:16-135:19. Owusu’s reference to “high level”

instructions describes their level of generality, not complexity; building servers was not a “difficult task.”

Ex. 114 (Owusu Tr.) 114:4-115:2, 165:19-166:4. See also Ex. 88 (Review of Exhibit 58) (demonstrating


5

1. SAs Consistently Testified to Nonexempt Troubleshooting Tasks.

CSC makes much of claimed variations in SAs’ work as “troubleshooters,” Def.’s Br. 8-

9, but the evidence shows that this nonexempt work follows a consistent pattern: SAs identify

common problems10

by reviewing reports or system logs,11

and rely on their own or their team’s

experience,12

rely on CSC documentation,13

or search the internet.14

If SAs cannot solve

problems using this routinized approach, they escalate the problem to someone else.15

Though

one SA compared his work to TV’s “House M.D.,” see Def.’s Br. 8, he clarified:

By the time [a formerly new problem is] five or six years old, I’ve kind of

seen it already, and we already know exactly what that is, and here’s the

link to the [Knowledge Base] article that tells you how to fix it, and it’s

pretty boring by then . . . . I don’t think I’ve ever been so far on the

cutting edge that Microsoft has had to write a [knowledge base] article

about an issue that I’ve had. There’s always been an existing one.16

This describes a routine series of steps that constitute nonexempt work.17

Courts have held that

“troubleshooting” is nonexempt when tech workers rely on “checklists and manuals” or “skill

inaccuracy of ECF No. 309-58 (“Independent Discretion and Judgment”)). 10

Ex. 96 (Carre Tr.) 84:8-85:2 (describing email connectivity problems); Ex. 97 (Clay Tr.) 52:15-55:20

(second level tickets were “very generic”); Ex. 105 (Kinnas Tr.) 23:10-24:9 (tickets involved “routine

stuff” like accessing files, clearing clogged printers, or getting applications to work); Ex. 123 (Thatch Tr.)

55:17-25 (“Everything was kind of repetitive”); Ex. 95 (Cardenzana Tr.) 86:3-88:5; 91:11-92:11 (even

level 3 tickets involved applying known processes and took no more than 15-20 minutes). 11

Ex. 96 (Carre Tr.) 90:8-92:5; Ex. 117 (Saunders Tr.) 54:4-13; Ex. 103 (Glanovsky Tr.) 134:2-23; Ex.

105 (Kinnas Tr.) 43:2-21. 12

Ex. 113 (Novotny Tr.) 123:6-124:15; Ex. 97 (Clay Tr.) 88:3-21; Ex. 123 (Thatch Tr.) 57:17-61:17; Ex.

95 (Cardenzana Tr.) 86:3-88:5; 91:11-92:11; Ex. 106 (Kurrelmeyer Tr.) 75:16-76:19; Kinnas Tr. 43:2-21. 13

Ex. 96 (Carre Tr.) 97:7-12 (“We had a fairly thick manual of what we could do and were allowed to do

. . . that we could troubleshoot or perform”); Ex. 115 (Perry Tr.) 127:14-130:9. 14

Ex. 96 (Carre Tr.) 106:9-108:14; Ex. 106 (Kurrelmeyer Tr.) 75:16-76:19; Ex. 105 (Kinnas Tr.) 43:2-21. 15

Ex. 113 (Novotny Tr.) 123:6-124:15; Ex. 97 (Clay Tr.) 63:4-64:15 (level 3 tickets must be resolved

within time limits); Ex. 111 (Nelis Tr.) 153:2-22 (“the troubleshooting we do is limited to . . . reports that

we have to provide [the vendor],” which recommends the course of action, which SAs implement. Id.

63:25-64:2); Ex. 117 (Saunders Tr.) 60:3-18; Ex. 95 (Cardenzana Tr.) 91:11-92:11; Ex. 107 (Marsh Tr.)

34:1-35:13; Ex. 115 (Perry Tr.) 127:14-130:9; Ex. 105 (Kinnas Tr.) 43:2-21. 16

Ex. 124 (Turner Tr.) 149:19-150:6; see also id. at 225:23-226:20 (“50 percent of this job is being good

at typing stuff into Google, and knowing what to type in is probably the other half”). 17

See 29 C.F.R. § 541.202(e) (exemption requires “more than the use of skill in applying well-established


6

and experience . . . to apply and adapt . . . those materials[.]”18

In contrast, courts have found

troubleshooting did require discretion where “there were no ‘canned answers’. . . [and workers]

had to be creative, analyze the issue, determine what tests needed to be run, and recommend a

solution.”19

Again, the parties’ disagreement about the meaning of this body of evidence is

precisely what a class trial is designed to adjudicate.20

2. All SAs Use Well-Established Techniques.

SAs testified that they followed established procedures in doing their work, see Pls.’ Mot.

III.D.2, even if the processes themselves were specific to the technology or client that SAs

supported, see Def.’s Br. 17-18. Even for non-procedural tasks, SAs applied well-established

techniques21

learned through on-the-job training 22

or through Google.23

Contrary to CSC’s

techniques, procedures or specific standards described in manuals or other sources”). 18

Longlois v. Stratasys, Inc., 88 F. Supp. 3d 1058, 1069 (D. Minn. 2015); see also Turner v. Human

Genome Sci., Inc., 292 F. Supp. 2d 738, 747 (D. Md. 2003) (techs who used “knowledge and skill to

solve computer problems” did not exercise discretion). 19

Grills v. Hewlett-Packard Co., 88 F. Supp. 3d 822, 826 (N.D. Ohio 2015). 20

See Ex. 83 (Review of Exhibit 47) (demonstrating inaccuracy of ECF No. 309-47 (“Complexity of

Resolving Tickets”)); Ex. 84 (Review of Exhibit 48) (demonstrating inaccuracy of ECF No. 309-48

(“Troubleshooting and On-Call Experiences”)). Troubleshooting must also involve “matters of

significance” to qualify as exempt work. See Turner, 292 F. Supp. 2d at 746. CSC exaggerates SAs’ role

in this respect as well. Def.’s Br. 9, nn.51-52. For the “very big” memory issue that Dawn Bauer

described, she “really didn’t” do any research, but “punted” to an architect; she “didn’t know where to go

[and] certainly wasn’t going to try anything.” Ex. 93 (Bauer Tr.) 96:9-21; 177:20-178:19. Steve Marsh

testified that fixing a server outage could take “days” if it required new servers, but he only had 15

minutes to work before the SRT intervened. Ex. 107 (Marsh Tr.) 34:1-35:24. CSC mischaracterizes

testimony about how long it took to resolve tickets; two examples, Def.’s Br. 9 n.52, refer to project

tickets or service requests, not trouble tickets, see Ex. 102 (Farough Tr.) 85:10-86:87; Ex. 100 (DeConti

Tr.) 199:15-25, and in the other two, SAs resolved the problems using well-established techniques. See

Ex. 101 (DeLira Tr.) 50:15-51:25; Ex. 112 (Nice Tr.) 65:18-66:7, 132:6-134:19. 21

Ex. 95 (Cardenzana Tr.) 89:17-90:17 (provided technical support using “wizards” and knowledge

bases); 123:4-20; Ex. 100 (DeConti Tr.) 319:5-320:15 (everything SAs do is structured by processes and

procedures; he is just a “cog in the machine.”); Ex. 104 (Kettler Tr.) 59:8-22, 92:16-93:7, 108:5-8 (relied

on Google searches, Microsoft’s TechNet support site, vendor support pages, and forums); Ex. 110 (Nall

Tr.) 41:7-21 (relied on prior knowledge or that of his team, and if they had not dealt with the problem, he

would go to the vendor for support); Ex. 116 (Rosborough Tr.) 123:17-125:13 (built servers following a

“plan” that described where server should be deployed and a “template” to install the operating system).

Schneeberg did not testify that “only 35% of his job was subject to documented procedures,” see Def.’s


7

contentions, Def.’s Br. 18, SAs generally testified that CSC processes do not require a high level

of technical knowledge to understand,24

and SAs’ role in revising these processes is minimal.25

3. SAs’ Work Is Uniformly Supervised.

CSC exaggerates variation in supervision. See Def.’s Br. 9. All SAs received similar

levels of direction, whether from CSC managers, client supervisors, or a ticketing system. This

is true whether SAs worked remotely26

or on the customer’s site.27

This supports commonality.28

Br. 18 n.30; he testified that he documented 35% of his work. Ex. 118 (Schneeberg Tr.) 121:5-20. 22

Ex. 117 (Saunders Tr.) 130:22-131:16 (learned procedures from training and co-workers). 23

Ex. 124 (Turner Tr.) 132:10-134:21, 225:23-226:20 (“50 percent of this job is being good at typing

stuff into Google, and knowing what to type in is probably the other half”). 24

Ex. 114 (Owusu Tr.) 248:1-11 (procedures could be understood with six months of on-the-job training

or 1-2 years of college); Ex. 107 (Marsh Tr.) 99:15-24, 111:18-112:23 (server build instructions “use

specific terms relevant to server administration,” but did not require technical experience); Ex. 111 (Nelis

Tr.) 117:3-120:7 (procedures don’t require advanced training, though technical terms can throw someone

off “out of proportion to the . . . procedures . . . that [SAs] actually have to follow . . . .”); Ex. 115 (Perry

Tr.) 204:2-5 (instructions only required knowing “what some of these abbreviations mean or where to

find a specific program”). 25

Ex. 105 (Kinnas Tr.) 265:13-21 (manager instructed him to document issues that he worked on); Ex.

107 (Marsh Tr.) 76:4-77:1 (team documented migration work based on “third-party” documentation that

they followed); Ex. 100 (DeConti Tr.) 93:20-94:25, 241:20-242:14 (took screenshots and noted changes

in operating system or images); Ex. 106 (Kurrelmeyer Tr.) 154:2-155:7 (encountered outdated procedure

in a “handful” of instances where he had to Google an updated procedure and update the existing

procedure accordingly). See also Ex. 87 (Review of Exhibit 57) (demonstrating inaccuracy of ECF No.

309-57 (“Use of Documentation to Perform Job Duties Varies”)). 26

See Ex. 93 (Bauer Tr.) 95:3-96:19; 138:2-141:4 (manager, architect, and vendor directed Bauer’s work

and guided her on how to resolve technical problems); Ex. 94 (Branson Tr.) 105:21-106:2; 51:23-52:8;

83:11-23 (supervised by a Boeing employee, received most day-to-day tasks through tickets or a service

request system); Ex. 109 (Michalak Tr.) 98:17-100:4; 166:6-23; 187:22-188:7 (received significant

direction on how to prioritize and complete work); Ex. 117 (Saunders Tr.) 43:3-45:22 (in addition to

weekly team meetings, emailed and called her supervisor at least weekly, and got most of her day-to-day

tasks through a ticketing system); Ex. 122 (Tagliaferri Tr.) 122:21-25, 151:23-25 (got assignments

through tickets entered into a ticketing system by the client’s “faceoff team”). 27

Ex. 119 (Smith, P. Tr.) 35:24-36:25 (manager gives day-to-day assignments); Ex. 99 (Combs Tr.) 36:3-

25, 208:3-8 (communicates with supervisor daily; supervisor assigns or approves all of his work). 28

Ex. 85 (Review of Exhibit 49) (demonstrating inaccuracy of ECF No. 309-49 (“Supervision by

Management”)). CSC’s claims about supervision are inaccurate; Schneeberg did not distribute

assignments to SAs – his manager gave assignments to his group, which discussed how to allocate it. Ex.

118 (Schneeberg Tr.) 67:6-17. Turner was only unsure who his manager was because he had three during

a transition period. Ex. 124 (Turner Tr.) 106:12-21; 173:18-174:23. Smith and Owusu were supervised

similarly to other SAs. See Ex. 119 (Smith, P. Tr.) 40:25-41:21; Ex. 114 (Owusu Tr.) 86:22-87:14.


8

4. SAs’ Primary Duty Does Not Involve Advising Clients.

Variations in how SAs interact with clients, Def.’s Br. 11-12, are irrelevant, because the

records shows that they do not “consult[]with users, to determine hardware, software or system

functional specifications,”29

or “act[] as advisers or consultants,”30

which is what matters for the

computer and administrative exemptions. Supporting different customers also does not matter,

because SAs performed the same actual duties in providing that support.31

SAs testified that

their role in client contact was limited,32

and that their recommendations were similarly limited,33

with no room for significant discretion.34

29

29 C.F.R. § 541.400(b)(1). 30

29 C.F.R. § 541.201(c). 31

See Ex. 93 (Bauer Tr.) 73:7-11, 188:4-24, 109:13-110:7; Ex. 99 (Combs Tr.) 39:22-40:5, 49:3-12; Ex.

96 (Carre Tr.) 65:12-66:6, 97:7-23; Ex. 97 (Clay Tr.) 69:8-22, 73:16-74:11, 99:16-100:6, 106:6-24; Ex.

92 (Atkinson Tr.) 83:3-22; 84:7-9; 85:15-22; Ex. 109 (Michalak Tr.) 45:16-21. CSC makes much of the

fact that some SAs “go out on missions with the military,” Def.’s Br. 3, n.5, but Combs testified that on

missions, his work is “the same, we’re just doing it somewhere else.” Ex. 99 (Combs Tr.) 120:7-122:9.

The fact that CSC calls a team of SAs that restores military servers a “Tiger Team” rather than a Service

Restoration Team (“SRT”), see ECF No. 309-67, at ¶ 14, does not change what it actually does. 32

Ex. 100 (DeConti Tr.) 135:25-136:24 (provided updates on the status of projects); Ex. 115 (Perry Tr.)

101:22-102:7 (gave status updates and relayed information); Ex. 117 (Saunders Tr.) 47:15-48:3 (answered

questions about, e.g., time to back up data); Ex. 102 (Farough Tr.) 70:15-21 (SAs discuss open tickets;

vendor recommends course of action, SAs implement); Ex. 124 (Turner Tr.) 188:25-191:5 (client’s role

was “to guide our team, or … to keep an eye on what our team is up to”); Ex. 101 (DeLira Tr.) 90:10-

92:13 (did not answer client questions; took instructions and “didn’t coordinate anything”); Ex. 106

(Kurrelmeyer Tr.) 72:14-73:16 (provided support by, e.g., granting user permissions or helping executive

assistants with tech trouble). 33

Ex. 100 (DeConti Tr.) 160:1-161:5 (chose from standard list of server offerings created by CSC); Ex.

102 (Farough Tr.) 59:11-60:21 (suggested how to migrate data, but not asked to design process). See also

Ex. 86 (Review of Exhibit 53) (demonstrating inaccuracy of ECF No. 309-53 (“Time Spent Working

With Customers”)). 34

Ex. 95 (Cardenzana Tr.) 208:19-210:5 (used discretion “to a certain extent” on “routine stuff, like

break-fix” and “run-of-the-mill typical client issues.”); Ex. 116 (Rosborough Tr.) 248:7-249:12, 252:10-

253:17 (“I mean . . . I’m not a monkey” but disagreeing with the proposition that his work involved

judgment or discretion); Ex. 119 (Smith, P. Tr.) 143:15-144:17 (gave “technical approval” for changes,

which was just one layer of approval). This testimony is akin to the work of a “technically proficient

help-desk employee whose primary duty was customer service[,]” not work “within the ambit of a

provision that is designed to exempt computer programmers, network designers, and software

developers.” Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006).


9

II. The Exemption Tests Are Identical for Each Member of Each State Law Class.

Contrary to CSC’s argument, Defs.’ Br. 27-28, different exemption standards by state are

irrelevant, because Plaintiffs have pled separate classes for each state, and commonality and

predominance must be proven as to the members of each of state class – not as to the litigation as

a whole.35

The legal test will be the same for every worker within each state class.

III. The Classes Are Ascertainable and Trial Will Be Manageable.

A. CSC’s Ascertainability Argument Raises a Premature Damages Issue.

CSC’s argument that individual differences in damages create an ascertainability

problem, Def’s. Br. at 24-25, is incorrect.36

Even if some SAs worked fewer than 40 hours per

week, “there is no merit to [a defendant’s] argument that class certification should be denied

because some [class members] may not have worked any overtime.”37

35

CSC’s claims about the exemption tests, Def.’s Br. 27-28, nn. 179-182, are incorrect. Courts have

analyzed the FLSA and the Connecticut Minimum Wage Act (“CMWA”) together, holding that they

“parallel” one another, Hendricks v. J.P. Morgan Chase Bank, N.A., 677 F. Supp. 2d 544, 559 (D. Conn.

2009), and consider an employee’s “primary duty” and the “administrative/production dichotomy” in

analyzing CMWA claims. See Asp v. Milardo Photo., Inc., 573 F. Supp. 2d 677, 686, 694 (D. Conn.

2008) (“same analysis” applies to FLSA and CMWA). The Ninth Circuit did not “take[] a contrary view”

in Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1127 (9th Cir. 2002); it held that work falling “squarely”

on the production side of the administrative/production line would not satisfy the administrative

exemption. Id. n.6 (citing Reich v. State of N.Y., 3 F.3d 581, 587–588 (2nd Cir. 1993)). 36

See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1437 (2013) (“Recognition that individual damages

calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.”) (Ginsburg &

Breyer, JJ., dissenting). 37

Spencer v. No Parking Today, Inc., No. 12 Civ. 6323, 2013 WL 1040052, at *26 (S.D.N.Y. Mar. 15,

2013), report and recommendation adopted, 2013 WL 2473039 (S.D.N.Y. June 7, 2013) (The legality or

illegality of [CSC’s] practices . . . are susceptible to common proof, thus satisfying . . . predominance.”).

CSC’s authority either does not support its position, see Denney v. Deutsche Bank AG, 443 F.3d 253, 263

(2d Cir. 2006) (“We do not require that each member of a class submit evidence of personal standing.”),

or represents a minority view, see Callalari v. Blackman Plumbing Supply, Inc., 307 F.R.D. 67, 76-77

(E.D.N.Y. 2015). Tyson Foods held “class certification was appropriate even though class members

might have to prove liability and damages individually.” Vaquero v. Ashley Furniture Indus., Inc., No.

13 Civ. 56606, 2016 WL 3190862, at *4 (9th Cir. June 8, 2016) (emphasis in original) (citing Tyson

Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016)); see also Norflet v. John Hancock Life Ins. Co.,

No. 04 Civ. 1099, 2007 WL 2668936, at *9 (D. Conn. Sept. 6, 2007) (Arterton, J.) (certifying Rule

23(b)(3) class despite “need for individualized damages determinations”).


10

B. Class Trial Will Be Manageable and Superior to the Next-Best Alternative.

CSC raises a concern that Plaintiffs “have no trial plan,” Def.’s Br. 40, but this case, like

other class actions, can be tried using common evidence.38

The Second Circuit has long

recognized that “substituting a single class action for numerous trials . . . will achieve significant

economies of time, effort and expense, and promote uniformity of decision.”39

Plaintiffs and

CSC rely upon on the same types of common evidence: (1) core documents produced by CSC,

(2) testimony from CSC’s representatives, and (3) representative testimony from SAs. These

types of common proof are widely accepted and support class certification.40

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that their Motion be granted.

Dated: August 12, 2016 Respectfully submitted,

By: /s/ Jahan C. Sagafi

Jahan C. Sagafi*

Jahan C. Sagafi (pro hac vice)

OUTTEN & GOLDEN LLP

One Embarcadero Center, 38th Floor


Telephone: (415) 638-8800

Facsimile: (415) 638-8810

38

Plaintiffs submit the attached Trial Plan, Ex. 89, in order to frame the “class claims, issues, or defenses”

pursuant to Federal Rule of Civil Procedure 23(c)(1)(B), and to demonstrate to the Court that this

proposed class action is manageable. This plan is preliminary, and Plaintiffs respectfully reserve the right

to present a revised trial plan. 39

In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 130 (2d Cir. 2013) (internal quotation and

citation marks omitted). 40

Even if some fact issues, such as damages, appear to require some individualized showing, the Court

can certify liability issues under Rule 23(c)(4) and bifurcate the case into liability and damages phases,

leaving damages for future proceedings. See Jacob v. Duane Reade, Inc., 602 F. App’x 3, 7 (2d Cir.

2015) (bifurcation “was within the district court’s discretion”); see also Robinson v. Metro-N. Commuter

R.R. Co., 267 F.3d 147, 167-68 (2d Cir. 2001) (district courts are encouraged to “take full advantage of

[Rule 23(c)(4)] to certify separate issues”) (internal quotation and citation marks omitted).


11

[email protected]

Michael J. Scimone (pro hac vice)

Michael N. Litrownik (ct 28845)

Elizabeth V. Stork (pro hac vice)

3 Park Avenue, 29th Floor

New York, NY 10016

Telephone: (212) 245-1000

Facsimile: (646) 509-2060

[email protected]

[email protected]

[email protected]

SUSMAN, DUFFY & SEGALOFF, P.C.

Karen Baldwin Kravetz (ct 19665)

59 Elm Street, 5th Floor

New Haven, CT 06510

Telephone: (203) 624-9830

Facsimile: (203) 562-8430

[email protected]

FEINBERG JACKSON WORTHMAN &

WASOW LLP

Todd Jackson (pro hac vice)

Darin Ranahan (pro hac vice)

Genevieve Casey (pro hac vice)

383 4th St., Suite 201

Oakland, CA 94607

Telephone: (510) 269-7998

[email protected]

[email protected]

[email protected]

LIEFF CABRASER HEIMANN &

BERNSTEIN LLP

Kelly M. Dermody (pro hac vice)

Daniel M. Hutchinson (pro hac vice)

Lin Y. Chan (pro hac vice)

275 Battery Street, 29th Floor


Telephone: (415) 956-1000

Facsimile: (415) 956-1008

[email protected]

[email protected]

[email protected]


mailto:[email protected]

12

Attorneys for Plaintiffs, the Collective, and the

Proposed Classes


IN THE UNITED STATES DISTRICT COURT FOR THE … · PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF ... Case 3:14-cv-00956-JBA Document 314 Filed 08/12/16 Page 1 ... more than

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