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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS SLOANE, individually : No. 4:16-cv-01571

and on behalf of all persons :

similarly situated, : (Judge Brann)

:

Plaintiff, :

:

v. :

:

GULF INTERSTATE FIELD :

SERVICES, INC., : 

:

Defendant. :

MEMORANDUM

March 24, 2017

I. INTRODUCTION

“This is the second attempt by the same counsel to seek certification of a 

collective action wage and hour lawsuit on a nationwide basis against Gulf 

Interstate Field Services (GIFS). The first attempt failed.”1 As might be expected, 

this second-chance effort has fared no better than the first. “Put simply, the old 

adage that ‘if at first you don’t succeed, try again’ does not apply to litigation in 

federal court.”2

 

1 Def.’s Br. in Opp. to Pl.’s Mot. for Conditional Certification, ECF No. 156 at 8.

2 Boone v. United States, No. 02-CR-1185 (JMF), 2017 WL 398386, at *2 n.1 (S.D.N.Y. Jan. 

30, 2017).

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This Fair Labor Standards Act case was brought on behalf of a putative class 

comprised of natural gas pipeline inspectors. In essence, the class members allege 

that they were paid a day rate with no accounting for overtime worked. Numerous 

features of this litigation are fatal to the class’s success: (1) significant disparities 

exist among the putative class members, their worksites, their responsibilities, and 

their clients—there is no common thread; (2) individualized inquiries as to the 

applicability of certain exemptions would overwhelm collective resolution; 

(3) applicable payroll records reveal that they were likely paid a salary; and (4) the 

pay letters at issue are at worst ambiguous and at best clarify that the workers 

actually received a salary guarantee.

Moreover, I observe from the outset that this is not a putative class 

comprised of minimum wage earners who perform rote tasks in less than ideal 

conditions. This is a class of professional pipeline inspectors—one of whom took 

home an annualized salary of $140,500—that nevertheless now seek to utilize the 

FLSA’s overtime provisions to obtain additional pay they claim they are owed.

Counsel for Plaintiff has already failed to obtain nationwide certification in a 

related matter pending before the United States District Court for the Southern 

District of Ohio. In fact, not only was certification of a collective action denied in 

part, but summary judgment was eventually granted in GIFS’s favor in that case.

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A few months later and following a radio campaign that sought to recruit 

potential gas workers to serve as class members, that same counsel arrived at this 

Court’s doorsteps, armed with a new class representative but the same old theory.3

Technically speaking, they first arrived at a neighboring district from which 

counsel for Plaintiff had recently won a favorable judgment in another case.

4

Regardless, when the court in that district realized in July 2016 that venue was 

nonexistent, the case was swiftly punted to this Court. Venue, as it turns out, was 

improper in that district because the lone putative class member from Pennsylvania 

had never even worked in one of the counties that comprise that forum.

This Court held a telephonic status conference on August 29, 2016, at which 

time a formal briefing and oral argument was scheduled on the pending motions 

for conditional certification under 29 U.S.C. § 216(b) and class certification under 

Federal Rule of Civil Procedure 23. That conference followed a letter from 

Veronica Saltz, Esquire, counsel for Defendant, which both informed the Court of 

 

3

See Transfer Memorandum, ECF No. 136 at 8 (Fischer, J.) (“Sloane became involved in this 

matter after hearing a radio advertisement several times during the period of March through 

August of 2015 when he was working in the Corpus Christi, Texas area for another 

employer. He confirmed that the radio advertisement told listeners that they may be entitled 

to unpaid overtime compensation under the FLSA if they were paid a ‘day rate.’ The 

advertisement directed listeners to contact Bruckner Burch PLLC if they desired to pursue a 

claim.”).

4 Hively v. Allis-Chalmers Energy, Inc., No. CIV.A. 13-106, 2013 WL 5936418, at *8 (W.D. 

Pa. Nov. 5, 2013) (Fischer, J.).

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the parallel Ohio action and expressed skepticism that this case could be 

meaningfully distinguished from that one.

This Court held a day-long oral argument on November 21, 2016. For all of 

the distance it seems we must have traversed, we have had to endure, we still find

ourselves at the same place where we began. For the reasons set forth below, 

Plaintiffs have fallen well short of satisfying their burdens under the Fair Labor 

Standards Act as well as Federal Rule of Civil Procedure 23. Accordingly, both 

certification motions are denied, and the putative opt-in Plaintiffs are dismissed 

with prejudice.

II. BACKGROUND

A. Significant Variance Is Present Among GIFS’s Inspectors, 

Clients, Worksites, Job Responsibilities, Discretion, And Projects.

GIFS staffs its clients’ projects with many different types of inspectors, 

including: Chief Inspectors, Assistant Chief Inspectors, COR Inspectors, Corrosion 

Inspectors, Electrical and Instrumentation Inspectors, Environmental Inspectors, 

Safety Inspectors, Utility Inspectors, Welding Inspectors, and Coating Inspectors.5

Each type of inspector possesses different qualifications and expertise, and 

performs different job duties.6 Nevertheless, Plaintiffs seek certification of 

collective action generically comprising “all current and former employees of 

 

5

ECF No. 156 at 12.

6

Id.

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[GIFS] who performed work as a pipeline inspector in the United States in any 

workweek between three years prior to the date of the Court’s Order and the 

present.”7The proposed class otherwise embraces no limitations based on 

geography, timeframe, client, position type, or project nature, though it does 

incorporate a carve-out for three separate projects where employees are believed 

not to have suffered any unlawful treatment.8

Since 2011, GIFS has staffed approximately 2,275 employees with over 40 

clients across at least 35 states, both on- and off-shore.9 As Robert J. Sprick, the 

company’s Senior Vice President, testified, “[t]he number and type of jobs staffed 

by [GIFS] on any particular project also varies considerably from project to 

project, client to client, and over time.”10 This means that “similarly titled jobs, like 

‘pipeline inspector,’ often entail different job duties from project to project, as each 

client sets the job duties for each [GIFS] employee on its projects.”11

GIFS “generally has no authority to direct the tasks performed by its 

employees on its clients’ respective projects, or control when or how such tasks are 

performed.”12 Instead, GIFS’s clients “generally assign work to [GIFS’s] 

 

7

ECF No. 141 at 1.

8

See id.

9

Sprick Feb. 20, 2015 Decl., ECF No. 99 Ex. 7 ¶ 6.

10 Id. ¶ 9.

11 Id. ¶ 10.

12 Id. ¶ 11.

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employees, and [GIFS’s] employees exercise various levels of discretion and 

independent judgment in performing their assigned tasks.”13 “Job duties also may 

vary depending upon the portion of a particular project that an employee is 

assigned, as conditions can vary at different parts of a worksite.”14

Because GIFS is a staffing company, its inspectors’ relative positions in the 

organizational structure is client-dependent.15 As stated, “inspectors are staffed for 

each particular project according to the needs of GIFS’s clients,” and 

“[s]upervision of inspectors may differ on a project-by-project basis depending 

upon the individual supervisor assigned by the client.”16 Accordingly, GIFS’s 

various clients, not GIFS, “control[ ] each staffed employee’s work schedule, 

whether the job site is open for work on any particular day, and any applicable sick 

leave and vacation policies.”17

B. The Hughes Court Rejects Counsel For Plaintiff’s Day Rate 

Theory In A Nearly Identical Action In The Neighboring State Of 

Ohio.

In 2014 and before this case’s inception, counsel for Plaintiffs filed a 

strikingly similar complaint in the United States District Court for the Southern 

District of Ohio. That case was captioned Hughes v. Gulf Interstate Field Servs., 

 

13 Id.

14 Id. at 10.

15 ECF No. 156 at 12.

16 Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 8.

17 Sprick 2015 Decl. ¶ 16.

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Inc., and it involved nearly identical allegations, save for the differences 

occasioned by the application of Ohio state law to the plaintiffs’ pendent claims.18

In particular, the Ohio lawsuit alleged that GIFS paid its inspectors a day rate.19

Counsel for Plaintiffs’ geographical blunders (or creativity) have 

unfortunately been featured as a common theme in their litigation against GIFS. 

Importantly, though, there is something obviously proper to be said for Plaintiff’s 

counsel having taken their first bite at the apple in the buckeye state—after all, 

that’s where the named and opt-in plaintiffs in Hughes actually worked. 

The telling nature of that initial choice of venue will come into play again 

later in my discussion, but suffice it to say for now that the Ohio action was a 

failed endeavor. In fact, the Honorable Edmund A. Sargus, Jr., determined that the 

plaintiffs could not even “make a modest factual showing” that a nationwide 

collective should be certified.20 Because all five of the opt-in plaintiffs were culled 

from the MarkWest Ohio project, Judge Sargus did conditionally certify a class 

consisting only of those inspectors who worked at that lone Ohio job site.21 As to 

the motion for conditional certification, he concluded that “Plaintiffs submit no 

 

18 S.D. Ohio Docket No. 2:14-cv-00432.

19 Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-000432, 2015 WL 4112312, at *1 

(S.D. Ohio July 7, 2015).

20 Id. at *3.

21 Id. at *3–4.

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sufficient evidence to support a conditional class outside of the Markwest Ohio 

Project.”22

At the same time, Judge Sargus also denied Plaintiffs’ motion for 

certification under Rule 23. He reasoned as follows:

The applicability of each of these exemptions involve fact-specific 

inquiries regarding an employee’s specific job duties—whether 

management, business-operations, office or nonmanual etc.; the 

independent judgment exercised in the performance of said duties, the 

percentage of time devoted to each duty; and the supervisory capacity, 

if any, of each employee. While Plaintiffs’ employee affidavits touch 

on the answers to some of these questions as they pertain to the 

individual affiants, Plaintiffs have not satisfied their burden of 

demonstrating that all individuals in the proposed class would have 

common answers, such that a determination of whether these 

exemptions apply is capable of classwide resolution.23

Approximately one year later, GIFS moved for summary judgment as to

Plaintiffs’ FLSA claims, and summary judgment was granted. Like the matter sub 

judice, summary judgment in Hughes turned on the applicability of a number of 

the FLSA’s regulatory exemptions.24 Those exemptions depended upon whether 

GIFS’ employees were “paid on a salary basis.”25

Judge Sargus relied on Sixth Circuit precedent for the proposition that 

“employment agreements are no longer the relevant starting point for whether an 

 

22 Id. at *3.

23 Id. at *6.

24 Id. at *3.

25 Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-000432, 2016 WL 4197596, at *4 

(S.D. Ohio Aug. 8, 2016).

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employee is paid on a salary basis.”26 The motivation behind such a rule is that 

what controls is not what the employee was owed, but what he actually received.27

“It is not written descriptors of the payment policies that are relevant to the salarybasis test inquiry, but rather the actual payment practice,” Judge Sargus 

concluded.28 Thus, because the plaintiffs in Hughes “were actually paid the 

requisite amount to satisfy the FLSA’s salary-basis requirement,” the exemptions 

applied, and summary judgment was appropriate.29

C. This Case Is Transferred To This District, And Oral Argument 

On Both Certification Motions Is Heard.

The present matter was initiated in the Western District of Pennsylvania on 

September 16, 2015. Plaintiffs filed their motion for conditional certification and to 

facilitate notice pursuant to 29 U.S.C. § 216(b) on April 8, 2016. The Honorable

Nora Barry Fischer, to whom the case was assigned at that time, heard oral 

argument as to that motion on May 26, 2016. Later, Plaintiffs motion for class 

certification pursuant to Federal Rule of Civil Procedure 23 was filed on June 27, 

2016. The matter was transferred in its entirety to the undersigned on July 29, 

2016. This Court conducted a telephonic status conference call on August 29, 

2016, at which time it finalized the remaining deadlines for responsive briefing on

 

26 Id. at *4.

27 Id.

28 Id.

29 Id.

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Plaintiffs’ Rule 23 certification motion. Thereafter, oral argument as to both 

motions was held on November 21, 2016.

D. The Named Plaintiffs And Opt-in Plaintiffs Exhibit Significant 

Variance In Terms Of Their Employment.

This section provides a brief factual comparison of several central factors 

about the named Plaintiff and the five opt-in Plaintiffs on whose behalf verified 

consent forms have been filed on the ECF docket. I list the opt-in plaintiffs in the 

order in which each’s notice of consent to opt-in was electronically filed by 

Plaintiff’s counsel on the Court’s docket.

1. Named Plaintiff: Thomas Sloane

In early 2014, Kinder Morgan hired GIFS to staff inspectors on a 

compressor station expansion project along a natural gas pipeline in Wyalusing, 

Bradford County, Pennsylvania.30 That compressor station is referred to internally 

as “Station 319.”31 GIFS sent eight inspectors, including Mr. Sloane, to the Station 

319 project.32 That project began in early January 2014 (although Mr. Sloane’s 

work there did not begin until April 2014).33 His work on that project ended in 

 

30 Robert J. Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 23.

31 Id.

32 Id.

33 Id.

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September 2014.34 Thereafter, Mr. Sloane worked for approximately one month on 

an unrelated project for the same client in Oklahoma.35

2. Opt-in Plaintiff #1: Allen Hinkle

Mr. Hinkle worked for GIFS from approximately August 2012 through 

December 2012 as a Welding Inspector in West Virginia on a project for 

MarkWest Liberty Midstream & Resources, LLC.36 He then worked for GIFS from 

approximately October 2013 through March 2014 as a Welding Inspector in 

Missouri on a project for Enbridge Energy Partners, L.P.37

3. Opt-in Plaintiff #2: Justin Bish

Mr. Bish worked for GIFS from approximately June 2011 through October 

2013 as a Utility Inspector in West Virginia on a project for MarkWest Liberty 

Midstream & Resources LLC.38 From approximately October 2013 through 

February 2014 he worked for GIFS as an Assistant Chief Inspector in West 

Virginia on a second project for that same client.39 Finally, from approximately 

 

34 Id.

35 Catherine Kramer May 6, 2016 Supp’l Decl., ECF No. 99 Ex. 6 ¶ 4.

36 Hinkle Apr. 4, 2016 Decl., ECF No. 85 Ex. 23 ¶ 4.

37 Id. ¶ 3.

38 Bish Apr. 4, 2016 Decl., ECF No. 85 Ex. 24 ¶ 4.

39 Id. ¶ 3.

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February 2014 through March 2014, he worked with GIFS as an Assistant Chief 

Inspector in Ohio on a project for MarkWest Energy Partners, L.P.40

4. Opt-in Plaintiff #3: Richard Stapleman

Mr. Stapleman first worked for GIFS from approximately October 2013 

through December 2013 as a Quality Control Inspector in Arizona on a project for 

Kinder Morgan.41 He then worked for GIFS from approximately March 2015 

through April 2015 as a Chief Inspector in New Mexico on a project for Kinder 

Morgan.42 He next worked for GIFS from approximately April 2015 through May 

2015 as a Chief Inspector in Texas on a project for Kinder Morgan.43 Finally, he 

worked for GIFS from approximately May 2015 through June 2015 as a Chief 

Inspector in Arizona on a project for Kinder Morgan.44

5. Opt-in Plaintiff #4: Rodney LaLonde

Mr. LaLonde first worked for GIFS from approximately March 2012 

through May 2012 as a Field Engineer in West Virginia on a project for MarkWest 

Energy Partners, LP.45 He worked on that same project from approximately May 

 

40 Id. ¶ 2.

41 Stapleman Apr. 7, 2016 Decl., ECF No. 85 Ex. 25 ¶ 6.

42 Id. ¶ 5.

43 Id. ¶ 4.

44 Id. ¶ 3.

45 LaLonde Apr. 7, 2016 Decl., ECF No. 85 Ex. 26 ¶ 4.

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2012 through September 2013 as a Chief Inspector.46 He then worked for GIFS 

from approximately September 2013 through September 2014 as a Chief Inspector 

in Ohio on a project for MarkWest.47 Shortly thereafter, he worked for GIFS from 

approximately February 2015 through June 2015 as an Assistant Chief Inspector in 

New York on a project for the Williams Companies, Inc.48 Then, he worked for 

GIFS from approximately June 2015 through July 2015 as an Environmental 

Inspector in Virginia on a project for Williams Companies, Inc.49

6. Opt-in Plaintiff #5: Buggs Pollett

Mr. Pollett worked for GIFS from approximately May 2014 through October 

2015.50 During that period, he served as a Utility Inspector for the Gulf South 

Pipeline Company (Boardwalk).51 Mr. Pollett was also employed as a Welding 

Inspector in Mississippi on a Panhandle Energy project for a period of time 

beginning in or around June 2012.52

 

46 Id. ¶ 3.

47 Id. ¶ 5.

48 Id. ¶ 6.

49 Id. at ¶ 7.

50 Pollett Opt-in Consent Form, ECF No. 75.

51 See Pollett June 7, 2012 & June 17, 2014 Pay Letters.

52 See id. See also Pollett June 7, 2012 & June 17, 2014 Pay Letters.

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7. Summary

The below table is adapted from a similar one submitted by Plaintiffs’

counsel. It summarizes the named and opt-in plaintiffs’ job sites, time worked, job 

titles, and clients:

Table 1. Comparison of the Named and Opt-in Plaintiffs

Name Time Worked States 

Worked Job Title(s) Client(s)

Thomas Sloane April 2014-

October 2014 OK, PA Welding Inspector

Kinder 

Morgan

Allen Hinkle

August 2012-

December 

2012;

October 2013-

March 2014

MO, WV Welding 

Inspector

Enbridge; 

MarkWest

Justin Bish June 2011-

March 2014 OH, WV

Assistant 

Chief 

Inspector; 

Utility 

Inspector

MarkWest

Richard 

Stapleman

October 2013-

December 

2013;

March 2015-

June 2015

AZ, NM, 

TX

Chief 

Inspector; 

Quality 

Control 

Inspector

Kinder 

Morgan

Rodney 

LaLonde

March 2012-

September 

2014;

February 2015-

June 2015

NY, OH, 

WV

Chief 

Inspector; 

Assistant 

Chief 

Inspector;

Field 

Inspector

MarkWest; 

Williams

Buggs Pollett

June 2012;

May 2014-

October 2015

MS

Welding 

Inspector;

Utility 

Inspector

Panhandle 

Energy; Gulf 

South 

Pipeline

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III. LAW

In an FLSA case brought on behalf of a putative class, the district court 

typically evaluates the propriety of certification at two junctures. How closely the 

court must scrutinize the proposed class each time depends upon whether 

discovery has yet been made available to the plaintiff. Thus, although district 

courts apply a less searching standard initially, once discovery is had, any 

presumption of leniency recedes, and the plaintiff is held to a more demanding 

burden. In sum, from the plaintiff to whom much discovery is given, much proof is 

expected in return.

“Although this two-step approach is nowhere mandated, it appears to have 

garnered wide acceptance,” including by the United States Court of Appeals for the 

Third Circuit and those lower courts within its purview.

53 In fact, in its leading 

2012 decision Zavala v. Wal-Mart Stores, Inc., the Third Circuit retraced the 

contours of this two-tier process and “affirm[ed] its use” for FLSA collective 

action cases going forward.54

The initial stage typically involves a request for conditional certification. 

“[B]ecause discovery has not yet occurred, courts do not review the underlying 

 

53 Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011) (Scirica, J.).

54 Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

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merits of the action in deciding whether to conditionally certify the class.”55

Instead, the plaintiff need only make a “modest factual showing—something 

beyond mere speculation” to obtain conditional certification.56 This framework 

recognizes that conditional certification “is not a true certification, but rather an 

exercise of a district court’s discretionary authority to oversee and facilitate the 

notice process.”57 In particular, the “sole consequence” of conditional certification 

is the issuance court-approved notice to potential class members.58

“At the conclusion of discovery . . . the court then makes a second 

determination, utilizing a stricter standard of ‘similarly situated.’”

59 This second, 

more probing stage is where the rubber meets the road for FLSA collective actions. 

“[P]laintiffs must satisfy their burden at this second stage by a preponderance of 

the evidence.”60 A showing that opt-ins are similarly situated to the named plaintiff 

is “impossible unless Plaintiffs can at least get over the line of ‘more likely than 

not.’”

61 “Relevant factors include (but are not limited to): whether the plaintiffs are 

employed in the same corporate department, division, and location; whether they 

 

55 John v. Nesco Serv. Co., No. 4:15-CV-253, 2016 WL 7757388, at *2 (S.D. Tex. June 10, 

2016).

56 Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224 (3d Cir. 2016) (Smith, C.J.).

57 Id. (citing Hoffman–La Roche v. Sperling, 493 U.S. 165 (1989)).

58 See Halle, 842 F.3d at 224.

59 Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102–03 (10th Cir. 2001).

60 Id. at 537.

61 Id.

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advance similar claims; whether they seek substantially the same form of relief; 

and whether they have similar salaries and circumstances of employment.”62

“Plaintiffs may also be found dissimilar based on the existence of individualized 

defenses.”63

Although a motion to decertify typically attends this stage, what sets the 

second step apart from the first is the existence of discovery dispositive to the 

ultimate issues. In fact, the Third Circuit in Zavala referred to the second step as 

the “post-discovery stage.”64 Accordingly, district courts in this circuit have 

applied an intermediate standard to the “similarly situated” inquiry if the parties 

have already engaged in discovery.

65 Courts have held this intermediate standard to 

require “some factual showing that the similarly-situated requirement is satisfied,” 

“as a result of the discovery as measured against the original allegations and 

defenses.”66

As one district court recognized, applying the intermediate approach helps 

“the Court [to] make an educated decision as to whether certifying this matter as a 

 

62 Id. at 536–37.

63 Id. at 537.

64 Zavala, 691 F.3d at 536.

65 See, e.g., Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 415 (D. Del. 

2007).

66 See id. Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011).

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collective action would survive the decertification process.”67 To proceed 

otherwise “would be an exercise in futility and wasted resources for all parties 

involved.”68 “Although the burden for certifying a FLSA lawsuit for collective 

action notification is light, there are limits, and the district court cannot function as 

a rubber stamp for any and all claims that come its way under this statute.”69

“Consistent with this principle, courts have the responsibility to avoid ‘stirring up’

litigation through unwarranted solicitation.”70

Whether the named plaintiff and the proposed opt-ins are similarly situated 

is a factual question.71 Thus, when a district court adheres to the legal standard 

annunciated in Zavala, its determinations are reviewed for clear error.72

IV. ANALYSIS

A. Prevailing Legal And Equitable Principles Demand That This 

Court Reject Plaintiff’s Second-Chance Attempt To Certify A 

Nationwide Collective Action of Pipeline Inspectors.

1. Because Plaintiffs have engaged in significant discovery in 

the three years since the Hughes case was initiated, they 

must offer something more than a modest factual showing 

to obtain certification.

 

67 Basco v. Wal-Mart Stores, Inc., No. CIV.A. 00-3184, 2004 WL 1497709, at *5 (E.D. La. 

July 2, 2004).

68 Id.

69 Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 929–30 (D. Ariz. 2010).

70 Burkhart-Deal v. Citifinancial, Inc., No. 07-1747, 2010 WL 457127, at *5 n.14 (W.D. Pa. 

Feb. 4, 2010) (Ambrose, J.).

71 Id. at 535.

72 Id.

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Application of a more searching standard is nothing new in FLSA cases 

where discovery has already changed hands. For instance, in Bunyan v. Spectrum 

Brands, Inc., the United States District Court for the Southern District of Illinois 

explained that “[i]n cases such as this one, where substantial but not all discovery 

has taken place, the intermediate two-step approach seems particularly 

appropriate.”

73 The parties in Bunyan had previously undertaken at least ten 

months of discovery, and a list of other potential opt-ins was made available.74

The Bunyan Court further summarized its decision to apply an intermediate 

level of scrutiny as follows:

It is clear that the parties have conducted a substantial amount of 

discovery in this case. They have exchanged interrogatories, 

conducted depositions, and exchanged a large number of documents. 

The Court cannot close its eyes to the amount of discovery already 

performed in this action. At the same time, the Court is cognizant that 

Plaintiffs only seek conditional certification at this point and that 

discovery is not complete. Taking the intermediate two-step approach 

permits the Court to determine whether a sound basis exists for 

proceeding conditionally as a collective action while also considering 

all evidence available at this time. Additionally, because discovery is 

not yet complete, conditional certification, if granted, permits 

Defendants to make a fully informed challenge to certification once 

discovery concludes. As such, the Court’s analysis proceeds under the 

intermediate approach.75

 

73 No. 07-CV-0089-MJR, 2008 WL 2959932, at *4 (S.D. Ill. July 31, 2008).

74 Id.

75 Id.

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Interestingly, the decision to permit discovery to influence the substantive 

standard at certification in Bunyan was derived from a similar approach followed 

in Bouaphakeo v. Tyson Foods, Inc., a case that would reach the Supreme Court of 

the United States in 2015.76 As the district court in Bouaphakeo explained, “the 

more onerous second stage analysis” allows the factfinder “to account for all the 

important facts learned through discovery that inform what putative plaintiffs, if 

any, are similarly situated to existing plaintiffs. Many other courts have done 

likewise.”77

These sentiments were echoed by the United States District Court for the 

Middle District of Alabama, when it wrote in Holt v. Rite Aid Corp. that “[once]

the parties have conducted extensive discovery, it is appropriate to carefully 

consider the submissions of the parties with respect to the collective action 

allegations.”

78 Specifically, the court in Holt found it appropriate to consider 

evidence such as declarations presented by the defendants “[b]ecause the issues in 

this case revolve around whether the day-to-day tasks of Store Managers and 

Assistant Managers are consistent with their designation as exempt.”79

 

76 564 F. Supp. 2d 870 (N.D. Iowa 2008).

77 Id. at 895.

78 333 F. Supp. 2d 1265, 1274 (M.D. Ala. 2004).

79 Id. at 1275.

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The same was true in Thiessen v. General Electric Capital Corp., where the 

United States District Court for the District of Kansas applied an intermediate level 

of scrutiny to the “similarly situated” inquiry after the parties conducted three 

months of discovery and several individuals had already opted in.80 The court in 

Thiessen set out several factors useful for consideration in conditional certification 

cases where discovery had already changed hands. Those factors included: “(1) the 

disparate factual and employment settings of the individual plaintiffs; (2) the 

various defenses available to defendant which appear to be individual to each 

plaintiff; and (3) fairness and procedural considerations.”81

Several courts within the Third Circuit have recognized the need for an 

intermediate level of scrutiny in FLSA cases.82 Moreover, application of a more 

searching standard in cases where substantial discovery has already changed hands 

is, in my view, consistent with the Third Circuit’s instructions in Zavala. After all, 

the crux of that decision is that the primary factor responsible for tightening the 

standard at certification is the existence of meaningful discovery, even if the case’s 

procedural posture has not yet formally advanced to decertification.

 

80 Thiessen v. Gen. Elec. Capital Corp., 996 F. Supp. 1071, 1081 (D. Kan. 1998)

81 Id.

82 See, e.g., In Re: Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., No. 

2:07-CV-01687-JFC, 2010 WL 3447783, at *17 (W.D. Pa. Aug. 13, 2010) (Conti, J.); Reinig 

v. RBS Citizens, N.A., No. 15CV1541, 2016 WL 1746848, at *2 (W.D. Pa. May 3, 2016) 

(Schwab, J.); Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 415 (D. 

Del. 2007).

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That significant precertification discovery can influence the appropriate 

standard for certification is reasonable and broadly applicable. By extension, a 

more searching standard is particularly uncontroversial where nearly the same 

exact counsel and parties have already exchanged discovery in two strikingly 

similar actions. It will not always be the case that existing discovery from a prior 

case can influence the appropriate standard on a subsequent certification motion in 

a distinct matter. Rather, district courts will naturally have to consider the extent to 

which those actions share common litigants and common claims, common facts 

and common law.

Further, it would be an entirely inefficient use of resources for this Court to 

conditionally certify a collective action, only to double-back because the bulk of 

the discovery it already considered has cast an ominous shadow upon the propriety 

of the ultimate merits. And in many ways, this case is perhaps an extreme example

of that principle. For instance, Plaintiffs have filed their motion for class 

certification pursuant to Federal Rule of Civil Procedure 23 contemporaneous with 

their motion for conditional certification under the FLSA. Presumably, then, 

Plaintiffs acknowledge that they have in fact received discovery sufficient to 

enable them to move for a final substantive determination on their Rule 23 

allegations. A similar posture was observed in a case entitled Gandhi v. Dell Inc.

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There, the United States District Court for the Western District of Texas recounted 

as follows:

One of the puzzling aspects of this issue in the present case is that the 

parties agreed to a scheduling order which explicitly contemplated 

discovery being conducted before a motion for class certification 

would be filed. As stated above, parties generally move for 

conditional certification early on in a case when little to no discovery 

has been conducted. Given that most cases addressing the standard of 

review for conditional certification base their decision in large part on 

the status of discovery, one would have thought that if the parties 

were agreeing to a discovery schedule, they would also have agreed 

on the standard to be applied in determining if this case should 

proceed as a collective action. That is not the case, however. At the 

hearing, Plaintiffs’ counsel stated that it was his understanding that 

discovery would be very preliminary and limited in scope, and 

therefore, the Court should review the collective action certification 

under the more lenient, initial review standard. Defense counsel, on 

the other hand, argued that because several months were set aside for 

discovery, because thousands of pages of documents have been 

exchanged, and because nearly twenty depositions have been taken, 

using the lenient standard—which is predicated on the assumption 

that little or no discovery has occurred—would be inappropriate here.

There is merit to both sides’ contentions on this issue. Plainly, 

because of the amount of discovery conducted to this point, this is not 

a classic case where the lenient standard is clearly appropriate. The 

parties contemplated that they would conduct discovery before the 

certification issue would be decided, and, given this, it does not seem 

wholly appropriate to use a very lenient standard, particularly when 

such a standard was adopted for situations when little or no discovery 

had been conducted. Further, the case has been pending for more than 

a year, and the parties had six months to conduct what the scheduling 

order described as the “discovery related to Plaintiff’s Anticipated 

Motion for Certification.”83

 

83 No. A-08-CA-248 JRN, 2009 WL 1940144, at *5 (W.D. Tex. July 2, 2009).

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I also sense that for all of the discussion about lenient versus intermediate 

standards and the various stages of scrutiny, a district court’s role in disposing of

conditional certification motions has become increasingly entangled in semantics.84

The end relationship is much more straightforward: the more discovery you have 

received, the more searching a standard to which your motion to certify will be 

held. The reasoning is just as compelling: the plaintiff has received the discovery it

asked for—now it needs to support its allegations.

This was the tenor of the oral argument offered by Annette A Idalski, 

Esquire, counsel for the Defendant. She offered the following rebuttal to counsel 

for Plaintiffs’ contention that a bifurcated discovery militated for application of the 

most lenient standard possible:

So what level is evidence is required? We’re past the modest factual 

showing. And most courts—we cited to the Creely case, which 

actually has a good analysis from the court—several different courts 

as to what should the standard be at this point. If there is extensive 

discovery conducted, the plaintiff has to make a modest plus factual 

showing, not just a modest showing. And courts are pretty clear on 

that. We’re not at the preponderance of the evidence standard. The 

court did bifurcate discovery. 

Judge Fischer did bifurcate discovery. But quite frankly, so much 

discovery was conducted in the last six months I’m not sure if there is 

any necessary discovery necessary to be done conducted going 

forward. I think the factual record is complete. It appears to be, for the 

most part, complete.

 

84 See, e.g., Reinig v. RBS Citizens, N.A., No. 15CV1541, 2016 WL 1746848, at *2 (W.D. Pa. 

May 3, 2016) (noting that the “intermediate” label was “a distinction without a difference” 

given the probative evidence that existed in the record).

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. . .

I don’t know how much more we can prove here. In 20 years I’ve 

never had a case with this much evidence at a motion for conditional 

certification stage. Typically two months after the case gets started, 

the plaintiff will file maybe an affidavit and have some evidence or 

allegation of an inference of a violation, and the Court has no other 

evidence to look at. So of course, the Court has to grant conditional 

certification, because there is no evidence to rebut. Here we did six 

months of discovery. So be careful what you ask for.85

Accordingly, this Court will follow the lead of so many district courts before 

it by requiring that Plaintiff make at least an intermediate showing that any opt-ins 

are “similarly situated” to the named representative. This “intermediate” or 

“modest plus” standard requires that Plaintiff make “some factual showing that the 

similarly-situated requirement is satisfied,” “as a result of the discovery as 

measured against the original allegations and defenses.”86

2. The named and opt-in Plaintiffs are not similarly situated, 

because they held different positions, worked for different 

clients and different supervisors on different projects in 

different states, and performed different work, all pursuant 

to localized policies and individualized salary agreements.

Section 216(b) of the FLSA permits certification of a collective action only 

if the Court determines that the opt-in plaintiffs are “similarly situated” to the 

named plaintiffs. Although the term “similarly situated” is not defined by that 

provision, “[t]he United States Court of Appeals for the Third Circuit has identified 

 

85 Tr. of Nov. 21, 2016 Oral Argument at 98:16–25; 111:20–112:09.

86 See id. Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011).

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relevant factors to consider as part of this analysis: ‘whether the plaintiffs are 

employed in the same corporate department, division, and location; whether they 

advance similar claims; whether they seek substantially the same form of relief; 

and whether they have similar salaries and circumstances of employment.’”

87

District courts within the Third Circuit’s vicinage that have applied this 

guidance from the appellate court generally have grouped their analysis into three 

subparts: “(1) the disparate factual and employment settings of the individual 

plaintiffs; (2) the various defenses available to the defendant; and (3) fairness and 

procedural considerations.”88

“The first factor assesses the opt-in plaintiffs’ job duties, geographical 

location, supervision, and salary.”89 At that stage, “allegations of an overarching 

policy are insufficient, and plaintiffs are required to produce substantial evidence 

of a single decision, policy or plan.”90 “The second factor concerns whether 

potential defenses apply to the opt-in class as a whole or whether many different 

defenses will be raised with respect to each individual opt-in plaintiff.”91

 

87 Karlo v. Pittsburgh Glass Works, LLC, No. 2:10-CV-1283, 2014 WL 1317595, at *17 (W.D. 

Pa. Mar. 31, 2014), aff’d, No. 15-3435, 2017 WL 83385 (3d Cir. Jan. 10, 2017) (Smith J.) 

(quoting Zavala, 691 F.3d at 536–37).

88 Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., No. CIV.A. 10-948, 2011 WL 6372852, 

at *3 (W.D. Pa. Dec. 20, 2011) (Ambrose, J.).

89 Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378 (W.D. Pa. 2011) (Ambrose, J.).

90 Moss v. Crawford & Co., 201 F.R.D. 398, 409–10 (W.D. Pa. 2000) (internal quotation marks 

omitted).

91 Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378 (W.D. Pa. 2011).

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Importantly, the third and over-arching factor, which centers on fairness, 

efficiency, and procedural considerations, requires the district court to consider 

whether the litigation “would require inquiry into the employment situation of each 

plaintiff rather than on a broad scale approach to the employment situation of the 

group.”92 Analysis of these factors should be made in light of § 216(b)’s “primary 

objectives”: (1) to lower costs to the plaintiffs through the pooling of resources; 

and (2) to limit the controversy to one proceeding which efficiently resolves 

common issues of law and fact that arose from the same alleged activity.”93 “The 

court must also determine whether it can coherently manage the class in a manner 

that will not prejudice any party.”94

Turning to the instant matter, I conclude that “Plaintiffs have failed to satisfy 

the ‘similarly situated’ standard. The similarities among the proposed plaintiffs are 

too few, and the differences among the proposed plaintiffs are too many.”95 I begin 

with the first factor, the disparate factual and employment settings of the individual 

plaintiffs. “To weigh in favor of collective treatment, similarities must ‘extend 

beyond the ‘mere facts of job duties and pay provisions,’ ‘and be viewed in light of 

 

92 Lusardi v. Xerox Corp., 118 F.R.D. 351, 360 (D.N.J. 1987).

93 Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000) (citing Hoffmann–La Roche, 

Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

94 Moss, 201 F.R.D. at 410. Accord Andrako v. U.S. Steel Corp., 788 F. Supp. 2d 372, 378 

(W.D. Pa. 2011).

95 Zavala, 691 F.3d at 537–38.

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the claims asserted.’”96 Indeed, “being similarly situated does not mean simply 

sharing a common status, rather, it means that one is subjected to some common 

employer practice that, if proved, would help demonstrate a violation of the 

FLSA.”97 “General allegations of an overarching employer policy ‘are insufficient, 

and plaintiffs are required to produce substantial evidence of a single decision, 

policy, or plan.’”98 Thus, “where an employer maintains a formal policy of lawful 

compensation, plaintiffs must present ‘substantial evidence that he employer, in 

fact, shirked its FLSA responsibilities.’”99

GIFS staffs its clients’ projects with many different types of inspectors, 

including: Chief Inspectors, Assistant Chief Inspectors, COR Inspectors, Corrosion

Inspectors, Electrical and Instrumentation Inspectors, Environmental Inspectors, 

Safety Inspectors, Utility Inspectors, Welding Inspectors, and Coating 

Inspectors.100 Each type of inspector has different qualifications, expertise, and 

performs different job duties.101 Nevertheless Plaintiff seeks certification of 

collective action generically comprising “all current and former employees of 

 

96 Martin v. Citizens Fin. Grp., Inc., No. CIV.A. 10-260, 2013 WL 1234081, at *3 (E.D. Pa. 

Mar. 27, 2013) (quoting Zavala v. Wal Mart Stores, Inc., 2010 WL 2652510, at *3 (D.N.J. 

June 25, 2010).

97 Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 538 (3d Cir.2012).

98 Martin, 2013 WL 1234081, at *3 (quoting Andrako, 788 F.Supp.2d at 378).

99 Martin, 2013 WL 1234081, at *3 (quoting Camesi v. University of Pittsburgh Med. Cent.,

2011 WL 6372873, at *4 (W.D.Pa., Dec.20, 2011)).

100 ECF No. 156 at 12.

101 Id.

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[GIFS] who performed work as a pipeline inspector in the United States in any 

workweek between three years prior to the date of the Court’s Order and the 

present.”102 The proposed class otherwise embraces no limitations based on 

geography, timeframe, client, position type, or project nature, though it does 

incorporate a carve-out for three separate projects where workers were believed to 

not have suffered any unlawful treatment.103

Since 2011, GIFS has staffed approximately 2,275 employees with over 40 

clients across at least 35 states, both on- and off-shore.104 As Robert J. Sprick, the 

company’s Senior Vice President, testified, “[t]he number and type of jobs staffed 

by [GIFS] on any particular project also varies considerably from project to 

project, client to client, and over time.”105 This means that “similarly titled jobs, 

like ‘pipeline inspector,’ often entail different job duties from project to project, as 

each client sets the job duties for each [GIFS] employee on its projects.”106

As recited more fully above, GIFS “generally has no authority to direct the 

tasks performed by its employees on its clients’ respective projects, or control 

when or how such tasks are performed.”107 Instead, GIFS’s clients “generally 

 

102 ECF No. 141 at 1.

103 See id.

104 Sprick Feb. 20, 2015 Decl., ECF No. 99 Ex. 7 ¶ 6.

105 Id. ¶ 9.

106 Id. ¶ 10.

107 Id. ¶ 11.

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assign work to [GIFS’s] employees, and [GIFS’s] employees exercise various 

levels of discretion and independent judgment in performing their assigned 

tasks.”108 “Job duties also may vary depending upon the portion of a particular 

project that an employee is assigned, as conditions can vary at different parts of a 

worksite.”109

Thus, because GIFS is a staffing company, its inspectors’ duties depend 

upon the demands of each particular client.

110 In fact, “inspectors are staffed for 

each particular project according to the needs of GIFS’s clients,” and 

“[s]upervision of inspectors may differ on a project-by-project basis depending 

upon the individual supervisor assigned by the client.”111 Accordingly, GIFS’s 

various clients, not GIFS, “control[ ] each staffed employee’s work schedule, 

whether the job site is open for work on any particular day, and any applicable sick 

leave and vacation policies.”112

Courts disposing of certification motions in natural gas drilling cases must 

recognize that, by the very nature of the industry, distinctions between job sites and 

the nature of any two projects introduce a certain variability into the duties of 

natural gas workers. Such is the nature of a transcontinental energy enterprise: Not

 

108 Id.

109 Id. at 10.

110 ECF No. 156 at 12.

111 Sprick May 6, 2016 Decl., ECF No. 99 Ex. 8 ¶ 8.

112 Sprick 2015 Decl. ¶ 16.

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only do different types of inspectors perform different tasks, but those tasks also 

vary depending upon worksite. 

For instance, the evidence uncovered in discovery reveals that a utility 

inspector on a pipeline project might work to ensure that the project is carried out 

safely, that the ditch is properly excavated, and that the right-of-way is cleared in 

accordance with specifications.

113 However, utility inspectors working on a project 

during later stages would be charged with, for example, ensuring that the pipeline 

is installed in a stress-free condition or ensuring that the appropriate rock shield, 

padding, and compacting equipment are used during removal.

114 However, the 

named Plaintiff here, a utility inspector on a compressor station project, would not 

perform any of those tasks.115 Rather, he would have an entirely distinct set of job 

responsibilities specific to the regulated functioning of the compressor station.116

Again, a utility inspector on a pipeline construction project might test soil 

compaction, whereas a utility inspector on a compressor station project is likely to 

inspect the pouring of concrete and review structural issues involving the erection 

of a building.117 A welding inspector on a pipeline construction project primarily 

 

113 Sprick 2016 Decl. ¶ 22.

114 Id.

115 Id.

116 Id.

117 May 5, 2016 Decl. of Robert Tate, ECF No. 99 Ex. 9 ¶ 12.

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reviews one kind of weld made repeatedly as sections are added to the pipeline.118

However, a welding inspector at a compressor station would inspect multiple kinds 

of welds made pursuant to multiple weld procedures and which might involve 

pipeline, tubes, air piping, or structural steel.

119 These processes pose “unique 

circumstances and challenges that are different from welding in the field on a 

pipeline project.”

120

Recall Table 1 from above, which lists the pertinent employment 

characteristics of each of the Plaintiffs:

Name Time Worked States 

Worked Job Title(s) Client(s)

Thomas Sloane April 2014-

October 2014 OK, PA Welding Inspector

Kinder 

Morgan

Allen Hinkle

August 2012-

December 

2012;

October 2013-

March 2014

MO, WV Welding 

Inspector

Enbridge; 

MarkWest

Justin Bish June 2011-

March 2014 OH, WV

Assistant 

Chief 

Inspector; 

Utility 

Inspector

MarkWest

Richard 

Stapleman

October 2013-

December 

2013;

March 2015-

June 2015

AZ, NM, 

TX

Chief 

Inspector; 

Quality 

Control 

Inspector

Kinder 

Morgan

 

118 Id. ¶ 13.

119 Id.

120 Id.

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Name Time Worked States 

Worked Job Title(s) Client(s)

Rodney 

LaLonde

March 2012-

September 

2014;

February 2015-

June 2015

NY, OH, 

WV

Chief 

Inspector; 

Assistant 

Chief 

Inspector;

Field 

Inspector

MarkWest; 

Williams

Buggs Pollett

June 2012;

May 2014-

October 2015

MS

Welding 

Inspector;

Utility 

Inspector

Panhandle 

Energy; Gulf 

South 

Pipeline

From my perspective, this overview reveals that, despite the lengthy time 

period during which this litigation has been percolating, counsel for Plaintiffs has

produced but a smattering of potential cross-country participants. The opt-ins share 

no common thread, and they offer virtually zero reasons why, for instance, 

resolution of an FLSA case as to a utility inspector who worked for Panhandle 

Energy in Mississippi is any way comparable to or in any way would expedite that 

brought by a Chief Inspector working for MarkWest in New York. To the contrary, 

the Court is left with a handful of heterogeneous claimants who worked in different 

locations, in different positions, for different clients and supervisors, under 

different pay agreements.

Plaintiffs’ ultimate fallback position is one of conciliation rather than 

aggression: if the Court rejects nationwide certification, it should instead certify a 

class on a statewide basis instead. There are three problems with that argument. 

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First, that a collective action fails certification on a nationwide basis does not 

automatically mean that the nationwide shoe was too large, so a statewide shoe 

must fit just right. In fact, as here, it could mean that neither approach is supported 

by the facts. Taken to the extreme, counsel for Plaintiffs would have this Court 

certify separate FLSA collective actions for each individual project for each 

individual client in each individual state—and how, if at all, would such an 

approach further judicial economy?

Second, it is not the Court’s task to draw appropriate subclasses on counsel 

for Plaintiffs’ behalf. If Plaintiffs believe that a more aptly defined subclass is 

appropriate, then they should present supporting evidence accordingly.

Third, even were the Court to draw a narrower class, such a class would 

likely be doomed from the outset. This case was brought in federal district court in 

Pennsylvania, though only one claimant (the named Plaintiff) ever worked at a 

Pennsylvania job site according to the pertinent declarations.

121 Further, scouring 

the employment circumstances of the putative class reveals that the only other 

potentially viable subclass would perhaps be that comprised of individuals who 

worked at the MarkWest Ohio site. The problem with that subclass is, of course, 

that it was already expressly rejected in Hughes.

 

121 See, e.g., John v. Nesco Serv. Co., No. 4:15-CV-253, 2016 WL 7757388, at *1 (S.D. Tex. 

June 10, 2016) (“[T]he Court will deny St. John’s motion for class certification because no 

one else has expressed interest in opting into this lawsuit.”).

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Taking all of these factors into consideration, Plaintiffs have failed to show 

the requisite similarity in employment circumstances required to obtain 

certification. Discovery has plainly not furthered their claims. To the contrary, it 

has largely debunked them. Even though I have applied a more stringent lens than 

usual, I believe it is also important to note for the record that I have serious 

reservations about whether the hodge-podge of claimants presented by counsel for 

Plaintiffs at this late stage would even be sufficient the most lenient of standards. 

As the Defendant here aptly notes: Despite the significant variance that 

attends the inspector position, “Plaintiff’s proposed nationwide class includes 

every kind of inspector on every kind of project for every client in every state.”122

Accordingly, certification and facilitation of notice will be denied for those 

reasons.

3. Because the members of the putative class are so diverse, 

resolution of Defendant’s exemption defenses will require 

significant individualized factfinding, which Plaintiffs have 

failed to show would be aided by certification in any way.

The second factor—the defenses available to the Defendant—also weigh 

against certification. The exemptions that GIFS contends apply to this case (the 

administrative and highly compensated exemptions) each have two fundamental 

elements that must be litigated and decided as to each Plaintiff before entitlement 

 

122 ECF No. 156 at 15.

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to overtime can be shown: a job duties test and a salary basis test.123 The highly 

compensated exemption clarifies that workers who earn a salary of $100,000.00 or 

more, whose primary duty includes performing office or non-manual work, and 

who customarily and regularly performs any one or more of the exempt duties of 

an executive, administrative, or professional employee, need not be paid overtime. 

The administrative exemption excepts from overtime payments such workers 

whose primary duty is office or non‐manual work directly related to management 

or general business operations of the employer or the employer’s customers.

124

As applied to the administrative exemption, “primary duty” means “the 

principal, main, major or most important duty that the employee performs. 

Determination of an employee’s primary duty must be based on all the facts in a 

particular case, with the major emphasis on the character of the employee’s job as 

a whole.”125 Importantly, the primary duty includes exercise of discretion and 

independent judgment with respect to matters of significance.

126 Thus, “the 

exercise of discretion and independent judgment involves the comparison and the 

evaluation of possible courses of conduct and acting or making a decision after the 

 

123 29 C.F.R § 541.200 (administrative); § 541.601 (highly compensated).

124 29 C.F.R § 541.200.

125 Department of Labor, Fact Sheet #17C (“Administrative Exemption”), available at 

https://www.dol.gov/whd/overtime/fs17c_administrative.pdf. 

126 See id.

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various possibilities have been considered.”127 Factors to consider include, but are 

not limited to: 

whether the employee has authority to formulate, affect, interpret, or 

implement management policies or operating practices; whether the 

employee carries out major assignments in conducting the operations 

of the business; whether the employee performs work that affects 

business operations to a substantial degree; whether the employee has 

authority to commit the employer in matters that have significant 

financial impact; whether the employee has authority to waive or 

deviate from established policies and procedures without prior 

approval, and other factors set forth in the regulation.128

“The fact that an employee’s decisions are revised or reversed after review does 

not mean that the employee is not exercising discretion and independent 

judgment.”129

a. The variety in job duties and discretion exercised by 

the putative class members precludes certification.

“Application of the administrative exemption is fact specific.”130 Thus, 

although “the need to examine the facts of an employee’s work does not 

categorically preclude collective determination of exemption,” certification is 

rendered less feasible in cases where plaintiffs have failed to produce “evidence 

 

127 Id.

128 Id.

129 Id.

130 Williams v. U.S. Bank Nat. Ass’n, 290 F.R.D. 600, 606 (E.D. Cal. 2013).

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indicat[ing] that prospective class members’ job duties were substantially 

similar.”131

District courts in the Third Circuit have hesitated to grant nationwide 

certification in exemption cases where plaintiffs have failed to adduce sufficient 

evidence of similarity. For instance the United States District Court for the District 

of New Jersey has explained that “[u]nsurprisingly, determining whether an 

employee is exempt involves a fact intensive inquiry. . . . Acknowledging that 

reality, a number of courts have declined to certify proposed classes of financial 

advisors who claim they were misclassified as exempt.”132 In addition, as the 

United States District Court for the District of Delaware has explained “[i]f proof

of the essential elements of the cause of action requires individual treatment, then 

class certification is unsuitable.”133

Based upon what discovery has revealed here, the level of discretion 

employed by individual inspectors varies depending upon the particular client and 

supervisors involved. For instance, when a project is widely dispersed, supervisors 

cannot always be available to inspectors.134 Consequently, inspectors often have to 

observe construction being performed in two or more places at once, requiring 

 

131 Id.

132 Smith Barney LLC Wage & Hour Litig., No. 11-cv-3121-WJM, 2016 WL 1407743, *5 

(D.N.J. Apr. 11, 2016).

133 Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 416 (D. Del. 2007).

134 ECF No. 156 at 14.

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them to make significant judgment calls about how to manage the workflow 

attendant to both locations.135 Moreover, depending on the worksite and the 

particular supervisor, some inspectors were empowered to give orders regarding 

cutting defective welds, while others could not give that order without approval.136

In fact, as a welding inspector at Station 319, Mr. Sloane testified that his 

job was critical to the operation of the pipeline “[b]ecause natural gas is flammable 

and explosive, and you really want to contain it. You want good quality welds; 

otherwise, there’s that possibility of not containing it and having a fire and 

explosion and environmental damage.”137 Without quality welding, a natural gas 

compressor station can become “[d]angerous to life, health, and environment.”138

Mr. Sloane further admitted that, at times, his supervisor would permit him a 

great deal of autonomy in precisely how, where, and in what manner he could 

perform his day-to-day job duties. For example, when he was working on the 

Paden Vapor Loop project, Mr. Sloane spent most of his time unsupervised, sitting 

in his truck doing paperwork.139 Yet, on the Station 319 project, Mr. Sloane was 

 

135 Id.

136 Id.

137 ECF No. 99, Ex. 20, Sloane Dep. 272:03–14.

138 Id.

139 See id. at 285:18–23.

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required to allocate his resources by walking around looking at welds “all day 

long.”140

Mr. Sloane also addressed safety issues that he observed and only 

periodically assisted with manual work if he got “bored.”141 Stressing the 

supervisory nature of his position, he explained that “it wasn’t part of my job. I 

was more less just—because I don’t—I get bored standing around too long, so I 

would pick up a wrench and help them bolt something up or something like that, 

yeah.” 142 Further, when a weld failed to pass Mr. Sloane’s inspection, the welders

“would ask [him his] personal opinion on what [he] would do as a welder to fix 

that, and [he] might offer my opinion.”143

The above-referenced exemptions will be relevant to the proper disposition 

of this case. The Court will have to consider each of the pertinent elements 

(primary duty, discretion, etc.), as they apply to each potential claimant. However, 

Plaintiffs leave the Court guessing as to how certification on a nationwide basis 

would materially advance those determinations.

Just as problematically, no evidence has been put forth to explain why, say, 

a Chief Inspector at a given site would be subject to the same analysis or outcomes 

 

140 See id.

141 Id. 288:4-17.

142 Id.

143 Id. at 273:21-274:8.

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as that of a Utility Inspector with whom he works. Taken to the extreme, “[e]ven 

employees who hold the same job title do not necessarily perform the same 

work.”144 That is particularly true where inspectors here were subject to different 

supervision and expectations depending upon the client and the particular worksite.

The Honorable Donetta W. Ambrose, writing for the United States District 

Court for the Western District of Pennsylvania in Kuznyetsov v. W. Penn 

Allegheny Health Sys., Inc., reached a similar conclusion in a case with a similar 

posture as this one.145 In that decision, Judge Ambrose found individualized 

defenses to be “highly relevant” and likely to “overwhelm” a consolidated 

proceeding.146 This was true, because, as here, “[t]he defenses to which Defendants 

point” would likely be “unique to specific Plaintiffs.”

147 “Trying this case in a 

collective forum,” Judge Ambrose concluded, would “prevent Defendants from 

employing these defenses” and “turn the trial into 824 mini trials.”148 In particular, 

the defendants would “be unable to delve into the specifics of an individual 

Plaintiff’s situation, supervisor’s behavior, etc.”

149 “This hardly promotes the 

 

144 Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000).

145 No. CIV.A. 10-948, 2011 WL 6372852, at *7 (W.D. Pa. Dec. 20, 2011) (Ambrose, J.).

146 Id. at *7.

147 Id.

148 Id.

149 Id.

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efficiency contemplated by collective actions.”

150 Judge Ambrose, who also 

authored the leading decision Andrako v. U.S. Steel Corp., distinguished that prior 

case, noting that the differences were more problematic in Kuznyetsov “because 

the defenses [went] primarily to liability” in the instant matter.151

Further, even relegating the ultimate burden of proof to the Defendant on the 

issue of exemptions, Plaintiffs have offered few suggestions that nationwide 

certification would in any way streamline those ultimate determinations. For all the 

Court knows, two workers might appropriately advance an exemption and four not, 

or six might be exempt and none entitled to overtime. That is an especially 

troubling realization in light of the discovery that has already been conducted and 

the sweeping relief that is presently being requested.

Counsel for Plaintiffs’ primary response is that the exemption issue can be 

overlooked, given certain Department of Labor regulations and guidance, which 

state that “[o]rdinary inspection work generally does not meet the duties 

requirements for the administrative exemption.”152 Needless to say, that directive, 

though well-taken by this Court, does not provide a one-size-fits-all answer. Proper 

 

150 Id.

151 Id.

152 See Tr. of Nov. 21, 2016 Oral Arg. at 40–42 (quoting 29 C.F.R. § 541.202(g); Weiss Report; 

DOL Field Operations Report). 

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resolution requires a thorough consideration of the relevant facts, not blind 

adherence to a generalized policy statement.

It goes without saying that the above guidance begs the question as to what 

types of inspection tasks constitute “ordinary inspection work” and what types do

not. In fact, the case law appears to distinguish between “ordinary inspection 

work,” such as “filling out checklists” or “conduct[ing] an audit,” and inspection 

work that more closely resembled implementation and assurance of “quality, safety 

and health, and compliance policy,” where the inspectors “have independence . . . 

to identify the root cause of the problem and determine the best way to fix or 

correct the problem.”

153

Consequently, federal courts have determined that inspectors may 

appropriately qualify for an exemption depending upon the type of work they 

perform. The United States Court of Appeals for the Sixth Circuit, describing 

circumstances eerily similar to Mr. Sloane’s own deposition excerpts, determined 

that inspectors were exempt in Schaefer v. Indiana Michigan Power Co. The Court 

reasoned as follows:

The evidence, viewed in the light most favorable to Schaefer, supports 

his contention that he spends some of his time performing manual 

tasks outside the office but this amount of time is not so much that he 

no longer qualifies for the exemption. Schaefer admits that for the past 

few years he has spent fifty percent of his time at his desk and that he 

 

153 Zackaria v. Wal-Mart Stores, Inc., No. ED CV 12-1520 FMO, 2015 WL 2412103, at *12 

(C.D. Cal. May 18, 2015).

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currently spends greater than eighty percent of his time at his desk. 

Even when he is away from his desk, he does not spend all of his time 

on manual tasks. Although Schaefer spends some of this time 

inspecting trucks, examining load bracings, inspecting shipping

containers, and examining shipping labels, these “inspection” tasks—

even if not performed at his desk—are nonetheless not manual tasks. 

Schaefer performs manual tasks when he actually picks up a hammer 

to brace a load or installs or tightens a strap. Accordingly, Schaefer 

does not spend so much of his time on these manual tasks so as to fall 

outside exempt status.154

Moreover, the set of bare-bones affidavits that Plaintiffs have offered are 

precisely what the FLSA case law has pejoratively termed “too thin a reed on 

which to rest a nationwide certification.”

155 The affidavits are exceptionally sparse, 

merely listing each opt-in Plaintiff’s job title and work history before reciting a 

boilerplate conclusion about payment of a day rate and non-payment of overtime. 

Not even a glimpse of similarity between those affiants can be seen.

156 Judicial 

focus in cases like this one is properly placed on the economic realities of the 

employment situation, not on nominal conclusions.

157

 To reason otherwise would 

disserve Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and 

 

154 358 F.3d 394, 402 (6th Cir. 2004).

155 Guillen v. Marshalls of MA, Inc., No. 09 CIV. 9575 LAP GWG, 2012 WL 2588771, at *2 

(S.D.N.Y. July 2, 2012).

156 Though Plaintiffs suggest that they all belonged to the same general “division” or 

“department,” Defendant has explained that “department 39” refers to GIFS itself and Mr. 

Sprick the Senior Vice President, all GIFS employees, inspectors and non-inspectors alike, 

share those two characteristics. See ECF No. 156 at 5 n.6.

157 Cruz v. Conocophillips, No. 4:15-CV-02573, 2016 WL 7106363, at *3 (S.D. Tex. Sept. 23, 

2016).

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inexpensive determination of every action.” For these independent reasons, 

certification will be denied.

b. Non-uniformity among the putative class members’ 

pay letters and actual compensation received precludes 

certification.

The parties debate whether this action is more appropriately construed as a 

“day rate” case or an “exemption” case. The reality is that it draws from both 

bodies of jurisprudence, and that fact makes the certification burden exceptionally 

more demanding for Plaintiffs here. Because the applicable exemptions hinge on 

whether each Plaintiff received a salary, the Court will necessarily need to inquire 

into the individual employment agreements, pay letters, and economic realities. 

Unfortunately for the Plaintiffs, that effectively would require this Court to carry 

out distinct analyses as to each individual claimant, because the respective pay 

agreements contain materially different language and are unique to each inspector, 

his experience and discretion, the client, and the particular conditions of 

employment.

To illustrate, Table 2 below sets forth the actual language from each of the 

Plaintiffs’ pertinent pay agreements. That language is typically distinct and 

dynamic as between different inspectors and different pay letters. From the outset, 

I note that counsel for Plaintiffs points to Defendant’s issuance of so-called 

“clarification” letters after a meeting between counsel in 2014 as evidence that 

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Defendant was attempting to cover the tracks of an illicit compensation scheme. 

The facts do not bear that charge out. Rather, issuance of the clarification letters 

are equally consistent with the innocuous theory that the Defendant paid its 

inspectors a guaranteed salary and moved swiftly to clarify that fact when it was 

confronted by Plaintiffs’ counsel. Without more, such an accusation falls flat.

Table 2. Comparison of Plaintiffs’ Pay Letters

Name Letter Dated Pay Letter Text

Thomas 

Sloane Apr. 11, 2014 Salary: $386.00/Calendar Day (as approved by client)

Thomas 

Sloane Jun. 17, 2014 Fixed Salary: $386.00/Day—Guaranteed seven (7) days per week

Allen 

Hinkle Aug. 13, 2012 Salary: $267.00/Day Worked

Allen 

Hinkle Oct. 24, 2013 Salary: $419.95/Day Worked

Allen 

Hinkle Mar. 3, 2013 Salary: $362.00/Day Worked

Allen 

Hinkle May 15, 2014 Salary: $355.00/Day—Five (5) days per week

Allen 

Hinkle Jul. 22, 2014 Salary: $355.00/Day—Guaranteed five (5) days per week

Allen 

Hinkle Apr. 2, 2015 Fixed Salary: $346.00/Day—Guaranteed six (6) days per week

Justin Bish Jan. 8, 2015 Fixed Salary: $405.00/Day—Guaranteed five (5) days 

per week

Richard 

Stapleman Oct. 1, 2013 Salary: $337.00/Based on 7 day work week

Richard 

Stapleman Oct. 30, 2013 Salary: $330.00/Based on 7 day work week

Richard 

Stapleman Mar. 12, 2015 Fixed Salary: $446.00/Day—Guaranteed seven (7) days per week

Buggs 

Pollett Jun. 7, 2012 Salary: $367.00/Day Worked (No Overtime)

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Name Letter Dated Pay Letter Text

Buggs 

Pollett Jun. 17, 2014 Fixed Salary: $285.00/Day—Guaranteed six (6) days per week

Clearly, the terms recounted above paint a wide-ranging portrait of the types 

of compensation agreements entered with its inspectors, each of which would 

require individualized interpretation and analysis. “This case thus is a far cry from 

those where nationwide conditional certification has been granted based on 

evidence of a company’s ‘national policy’ that itself gave rise to the alleged FLSA 

violations.”

158 To the contrary, the truth or falsity any FLSA violation here hinges 

upon particularized inquiries unique to each claimant and his employment setting.

Another issue throughout this litigation has been the extent to which salary 

guarantees must be expressed in writing rather than verbalized. I note, however, 

that the above overview makes clear that several “guarantees” were memorialized 

in writing by the Defendant. Thus, somewhat confusingly, for Plaintiffs to prevail, 

they must contend that a promised amount guaranteed for a set period of days was 

not a salary.

Just because a salary is expressed as a guaranteed amount per day does not 

mean that it is no longer a salary—just the same as expressing it in an hourly, biweekly, monthly, or quarterly increments does not convert it from a salary to an 

 

158 Martin v. Sprint/united Mgmt. Co., No. 15 CIV. 5237 (PAE), 2016 WL 30334, at *7 n.11 

(S.D.N.Y. Jan. 4, 2016).

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“hourly rate,” “monthly rate,” or “quarterly rate.” Moreover, Plaintiffs’ 

interpretation would require this Court to assume that, in least one case, GIFS 

stated in writing that it would pay a “salary” and “no overtime,” although in reality 

it paid a day rate and owed the worker overtime. That GIFS effectively 

memorialized its own FLSA violation would certainly be an absurd interpretation 

of that letter.

Likewise, none of the affiants here stated that they did not in fact receive a 

guarantee each week; none state that they were not paid if they did not work on a 

given day, and none state that their pay fluctuated in correlation to the number of 

days they worked each week. Indeed, they were not so deprived, as the below

Payroll Records summaries show that Mr. Sloane, Mr. Stapelman, and Mr. 

LaLonde received a constant, guaranteed salary each week that they were 

employed by GIFS.159

Figure 1. Sloane Payroll Record

 

159 ECF No. 99 Ex. 28.

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Figure 2. Stapleman Payroll Record

Figure 3. LaLonde Payroll Record

“An employee will be considered to be paid on a ‘salary basis’ within the 

meaning of this part if the employee regularly receives each pay period on a 

weekly, or less frequent basis, a predetermined amount constituting all or part of 

the employee’s compensation, which amount is not subject to reduction because of 

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variations in the quality or quantity of the work performed.”

160 “Whether an 

employee is paid on a salary basis is determined by the compensation actually 

received, not what is stated in an employment agreement.”161

Plaintiffs offer no persuasive justifications to depart from such pragmatic 

reasoning—and for obvious reasons: reasonable review of the above Payroll 

Records reveals that many of the claimants received the same amount of pay every 

week they worked for GIFS, a disbursement known in common parlance as a fixed 

salary.

Highly problematic for Plaintiffs are the existence of days upon which the 

claimants were not at work but were nevertheless paid the same fixed salary. For 

instance, the United States Court of Appeals for the Seventh Circuit in Kennedy v. 

Commonwealth Edison Co. held that power plant supervisors were paid a salary 

basis and came within the reach of the administrative exemption where “the record 

indicate[d] that even if an employee had chosen to take the day off without pay, 

ComEd would not have reduced her salary.”162

A day away from work without a reduction in pay is precisely what the lead 

Plaintiff Mr. Sloane was treated to during the 2014 Fourth of July weekend. 

 

160 29 C.F.R. § 541.602(a).

161 Desmond McDonald v. Gulf Interstate Field Servs., Inc., No. 2:14-CV-00432, 2017 WL 

462249, at *1 (S.D. Ohio Jan. 4, 2017) (citing Orton v. Johnny's Lunch Franchise, LLC, 668 

F.3d 843, 847-48 (6th Cir. 2012)).

162 410 F.3d 365, 371 (7th Cir. 2005) (Wood, J.).

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Deposition testimony reveals that Mr. Sloane only worked for a half-day on

Friday, July 4, 2014, went to New York with his fiancée to watch the fireworks on 

Saturday, July 5, and then did not return to work until Sunday, July 6. When Mr. 

Sloane turned in his timesheet, he wrote that he did not work on July 5 while he 

was in New York. Nevertheless, his supervisor ensured that he was paid his full 

salary.

Mr. Sloane explained as follow during his June 22, 2016 deposition:

Q. Did you work on July 5, 2014?

A. July 5th, 2014?

Q. Yes.

A. Yes.

. . .

Q. Where did you work on July 5th?

A. At home.

. . .

Q. What did you do when you were working at the apartment on July 5th?

A. Reports and stuff, going over drawings.163

However, three months later, Mr. Sloane’s story seemed to have shifted. He 

revised his prior account as follows:

 

163 Sloane Jun. 22, 2016 Dep., ECF No. 182 Ex. 19, at 370–72.

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So Friday was the 4th. I worked half a day Friday at the job site and 

went to New York City that evening, because I remember we saw 

fireworks. And then—or did I—I think I ·worked—yeah, we saw 

fireworks in New York City. So I was off Saturday, and then I go 

back on Sunday to the job site.164

During oral argument, counsel for Plaintiffs attempted to neutralize this 

testimony by arguing that GIFS must have paid its employees their entire day rate, 

even if they worked for only a few minutes on any particular day. That is a 

questionable explanation that contradicts common sense:

THE COURT: It seems odd to me, though, that Gulf Interstate would pay its 

workers the same rate per day even if they were to only work 

ten minutes in one of those days.

MR. JONES: If they are paying them a day rate, that’s not their choice. That 

is what a day rate is. In other words, if I'm being paid on a day 

rate, I work one hour, I get paid my entire day rate.

THE COURT: Or it suggests—it might suggest to an observer that he’s being 

paid a salary.

MR. JONES: Again, I do not disagree that it is consistent—that it is 

consistent with and looks like a salary. My point is that it is just 

as consistent as being paid on a day rate basis. And that is why 

when you are paid on a daily basis, there has to be something 

else. And that something else is the guarantee.

THE COURT: Why would any sophisticated employer—I would assume for 

the sake of argument that Gulf Interstate is a sophisticated 

employer—use a day rate then? Why would they do that? What 

am I missing?

MR. JONES: In the oil and gas industry, 90 percent of people working out in 

a field—in the field are paid on a day rate. I can tell you after 

 

164 Sloane Sep. 25, 2016 Dep., ECF No. 182 Ex. 18, at 106:10–16.

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doing, you know, probably not hundreds but at least tens, 

multiple tens, of cases involving companies out in the oil field, 

I can tell you that with the exception of one that paid them 

hourly, everybody else was paid on a day rate.

THE COURT: That seems a curious way to do business. That’s not the 

business I’m in, obviously. But it seems to me that if they are 

being paid—if Mr. Sloane is being paid $378 a day, it looks 

like that’s about what it is, that they would be better off putting 

him on salary to do that. I mean, wouldn’t they do that, get ten 

minutes of work for $378 versus ten hours’ worth of work the 

next day for $378. Which is better? I should think it would be 

ten hours of work for $378.

That GIFS’s contested business practices are consistent with a wholly lawful 

approach (and “consistent” may be an underestimation based on the evidence) is 

insufficient at this stage. More is required. As Mr. Sprick explained during several 

of his depositions, GIFS employees were in fact guaranteed a fixed salary and not 

paid a day rate, and there were compelling accounting reasons to express the salary 

payment in the increments in which the company did:

Q. Okay. Prior to April of 2014, how many days’ pay was a pipeline inspector

guaranteed regardless of the number of days that they worked?

A. They were guaranteed six days of pay to make up their guarantee.

Q. Whether or not they worked those days?

A. That is correct.

Q. Okay. Could you identify for me, please, sir, each and every document 

where it is stated that a pipeline inspector on the MarkWest Ohio project is 

guaranteed six days of pay prior to April of 2014?

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A. Again, it was—they were verbally notified of their six-day guarantee. And 

it’s industry practice if you want to get the employee to work for us, we have 

to make that guarantee.165

In a subsequent deposition, Mr. Sprick reiterated:

Q. And nowhere in Exhibit 9 does it say anything about a six-day guarantee, 

does it?

A. No, because the guarantee was verbally told to the individual. And the

reason we state per day worked, it allows us to make permissible deductions 

at the beginning and end of the project as well as to pay him for the seventh 

day if worked. That’s the reason, you know, that the day worked is part of 

the way we calculated the guarantee.

Q. It doesn’t say anything about a guarantee, does it?

A. No, because it’s—it was verbally told to him as well as an industry practice 

that all inspectors get a guaranteed salary. And let me add that, you know, all 

of our pay records demonstrate that they got paid a guaranteed salary.166

Plaintiff suggests that the decision by the United States District Court for the 

Southern District of Ohio in Fenley v. Wood Grp. Mustang, Inc. militates for the 

opposite conclusion.167 In my view however, the circumstances in Fenley are 

entirely distinct from those here. First and foremost, Fenley involved a class of 

plaintiffs who had explicitly been characterized as receiving a day rate. In fact, the 

defendant classified the plaintiffs as “Non Exempt Day Rate” employees using the 

payroll code “DAY.”168 Further, the company’s overtime policy in Fenley stated

 

165 Sprick Dep. 33:22–34:17.

166 Sprick Dep. 60:7–24.

167 170 F. Supp. 3d 1063 (S.D. Ohio 2016).

168 Id. at 1068.

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that “Non-Exempt day rate Mustangers (DAY) receive a day rate that is inclusive 

of all hours worked, including overtime.”169

No such smoking guns exist here. To the contrary, whereas the presence of a 

day rate system was effectively a given in Fenley, whether the opt-in and named 

plaintiffs were actually paid an unlawful day rate here turns on the text of each 

worker’s pay letter and what that worker actually received. With that foundation in 

place, it is also important to emphasize that the parties in Fenley had conducted 

only very limited discovery by the time that the initial motion for conditional 

certification was filed.170 In essence, Plaintiffs here have conducted significantly 

more discovery than was conducted in Fenley but have comparatively less to show 

for it.

Thus, for all of the preceding reasons, the putative class members are not 

similarly situated, and individual questions regarding the application of certain 

exemptions would swallow any economies of scale realized by a collective action. 

Accordingly, the motion to facilitate notice and certify a collective action is 

denied. 

 

169 Id.

170 Id.

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B. For Parallel Reasons, Plaintiff’s Proposed Rule 23 Class Is An 

Inadequate Vehicle To Adjudicate The Remaining Claims.

“Rule 23 governs the certification of class actions in federal courts and its 

requirements are more stringent than those of the FLSA.”171 In particular, because 

“Rule 23(b)(3)’s predominance requirement is more stringent than the ‘similarly 

situated’ requirement under § 216(b),” it would certainly be a rare occurrence for a 

given putative class to miss the bar for FLSA certification but simultaneously clear 

Rule 23’s correspondingly higher hurdle.

172

1. Because determining one’s eligibility for class membership 

would require particularized, factual inquiries into each 

worker’s pay letters, exempt status, and other employment 

circumstances, answers common to the class do not 

predominate over individual ones.

This lawsuit suffers from two procedural flaws, known colloquially in the 

class action jargon as “commonality” and “predominance.” As the late Justice 

Antonin Scalia described the commonality requirement in Wal-Mart Stores, Inc. v. 

Dukes, “What matters to class certification . . . is not the raising of common 

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to 

generate common answers apt to drive the resolution of the litigation. 

Dissimilarities within the proposed class are what have the potential to impede the 

 

171 Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 123 (S.D.N.Y. 2011).

172 Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 355 (N.D. Ill. 2012).

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generation of common answers.”173 Consequently, commonality is not satisfied 

merely because the plaintiffs “have all suffered a violation of the same provision of 

law.”174 Instead, the class claims “must depend upon a common contention.”175

“That common contention, moreover, must be of such a nature that it is capable of 

classwide resolution—which means that determination of its truth or falsity will 

resolve an issue that is central to the validity of each one of the claims in one 

stroke.”176

The next hurdle is predominance. A class action may be certified under 

Federal Rule of Civil Procedure 23(b)(3) only if “the court finds that the questions 

of law or fact common to class members predominate over any questions affecting 

only individual members, and that a class action is superior to other available 

methods for fairly and efficiently adjudicating the controversy.” That rule 

enumerates four factors for consideration: 

(A) the class members’ interests in individually controlling the 

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy 

already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of 

the claims in the particular forum; and

 

173 564 U.S. 338, 350 (2011).

174 Id.

175 Id.

176 Id.

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(D) the likely difficulties in managing a class action.

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are 

sufficiently cohesive to warrant adjudication by representation.”

177

The United States District Court for the Eastern District of Pennsylvania has 

described predominance as the “counterpart” to commonality.178 Along the same 

line, the Third Circuit has stated that “[i]t is often appropriate to discuss 

commonality and predominance together because the commonality inquiry is 

subsumed into the predominance inquiry.”179 This is because “[p]arallel with Rule 

23(a)(2)’s commonality element, which provides that a proposed class must share a 

common question of law or fact, Rule 23(b)(3)’s predominance requirement 

imposes a more rigorous obligation upon a reviewing court to ensure that issues 

common to the class predominate over those affecting only individual class 

members.”180 For example, as one federal court has concluded “[i]n short,

certification is not warranted” if “ individual issues relating to eligibility for the 

administrative, professional, and highly compensated employee exemptions will 

 

177 Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

178 Coleman v. Commonwealth Land Title Ins. Co. Mitchell, — F.R.D. —, No. CV 09-679, 

2016 WL 4705454, at *5 (E.D. Pa. Aug. 17, 2016).

179 Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (McKee, C.J.).

180 Sullivan v. DB Investments, Inc., 667 F.3d 273, 297 (3d Cir. 2011) (Jordan, J.).

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predominate over any questions of law or fact that are common to the class 

members.”181

Plaintiffs request that the Court certify various Pennsylvania classes of 

general, supervisory, and non-supervisory inspectors to vindicate state law claims 

under the Pennsylvania Minimum Wage Act and common law unjust enrichment 

allegations.182 “The Pennsylvania Minimum Wage Act [PMWA] mirrors the 

FLSA. Based on the ‘identity of purpose’ between those two statutes, Pennsylvania 

courts employ the same tests used by the federal courts and use federal case law to 

determine the governing standard.”

183 Like the FLSA, the PMWA also recognizes 

an administrative exemption. “Under the PMWA’s administrative employee 

exemption, anyone employed in a ‘bona fide . . . administrative . . . capacity’ is 

exempt from the PMWA’s overtime protections.”

184

Similar to my analysis above, Plaintiffs do not offer any evidence or likely 

sources of evidence that would resolve questions common the class (should such 

questions even exist) in one stroke. To the contrary, there is a high probability that 

 

181 In re RBC Dain Rauscher Overtime Litig., 703 F. Supp. 2d 910, 968 (D. Minn. 2010).

182 See ECF No. 126.

183 Jochim v. Jean Madeline Educ. Ctr. of Cosmetology, Inc., 98 F. Supp. 3d 750, 756 (E.D. Pa. 

2015).

184 Baum v. Astrazeneca LP, 372 F. App’x 246, 248 (3d Cir. 2010) (quoting 43 P.S. 

§ 333.105(a)(5)).

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any such class proceedings would devolve into mini-trials, focused on each 

individual inspector’s particular duties, discretion, pay agreements, etc. 

The differences that permeate the putative class when viewed through the 

FLSA lens are just as pronounced under Rule 23. First, there exist significant 

discrepancies among different positions at different worksites. Hours worked, tasks 

delegated, and discretion exercised by, for example, a welding inspector in New 

Mexico will likely provide very little information as to how those same metrics 

apply to a distinct client’s chief inspector in New York. At the very least, Plaintiffs

offer no persuasive justification as to why those answers would be universal to the 

class.

The same is true as it applies to liability in general. Individualized questions 

clearly will predominate, as this Court will need to review each worker’s pay 

agreements, hours worked, days off, and payroll records. Moreover, any two 

employees’ circumstances are highly independent. That is to say, whether GIFS 

violated or did not violate the FLSA as to one worker bears little upon whether 

treatment of any other GIFS employee was lawful or not. Plaintiffs offer no 

reasons otherwise, and that heterogeneity is a fatal to class certification.

This line of thinking could be reiterated over and over, just by swapping out 

the variable: the amount of discretion an employee exercises; whether the 

employee received the same payment each week; whether the employee primarily 

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worked in a bona fide administrative capacity; whether the employee performed 

manual work; whether the employee took days off; whether the employee was 

compensated while away from work; etc. The consequence is the same: 

individualized questions predominate over questions common to the class.

It is not enough to argue, as Plaintiffs do here, that the common question is 

simply whether or not the employees were paid a day rate. As just illustrated, the 

answer to that question depends on a variety of factors and on a number of distinct 

sub-questions. Moreover, I have no reason to believe that the answer to that 

question as it pertains to any given claimant would be common to any others—let 

alone capable of being resolved as to all class members in a single stroke.

To the contrary, Plaintiffs fall well short of offering the kinds of “common 

proof” necessary to sustain a class action in federal court. As counsel for 

Defendant cogently summarized:

First, Sloane does not submit or even describe the “testimony” or 

“representative sample,” making it impossible for the Court to 

evaluate whether the evidence would be uniform across the class. 

Second, most of this supposedly “common” evidence either does not 

exist or is not actually common: there is no relevant “employee 

handbook” or “policy on exemption determinations;” pay letters and 

rate sheets are irrelevant to the salary basis test, and are not uniform 

across the class; “compensation records” are individual to each 

inspector; and “job descriptions” are not uniform and, according to 

Sloane, do not accurately reflect job duties anyway. In other words, 

Sloane’s passing reference to “common proof” does not satisfy his 

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burden of showing predominance, and class certification should be 

denied.185

That the putative class (or subclasses) both fail the commonality and 

predominance requirements is not the stopping point. I note for the record an 

additional argument raised by counsel for Defendant’s opposition papers. That 

argument calls into question Mr. Sloane’s “typicality.” In particular, Defendant 

contends that were this Court to determine that Mr. Sloane actually was guaranteed 

a salary, and certainly the evidence points in that direction, then his interests would 

be atypical of the interests of any putative class member who actually did receive a 

day rate. I agree. Not only would Mr. Sloane lack the requisite motivation to 

pursue the class’s overtime claims to fruition in such an instance, but such 

divergence in interests would also negatively impact the pertinent exemptions 

determination. For that reason, I do believe that, although uncommon, there is a 

lurking problem with typicality in this case.

Further, I agree with the Defendant that Plaintiffs’ proposed subclasses are 

ill-defined and premature. Not only does it appear that the proposed supervisory 

and non-supervisory subclasses may omit certain inspector positions, it also could 

be the case that one of those subclasses is entirely an empty set—in other words, it 

could be that no member of the putative class is a “non-supervisory” inspector. 

That Plaintiffs cannot readily place existing claimants in either bucket is not a good 

 

185 ECF No. 182 at 24–25.

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sign, given the amount of discovery that has already been conducted at this stage. 

In addition, there is a sense that defining subclasses so narrowly eviscerates any 

hope of preserving judicial economy. If the Court is asked to divvy up supervisors 

and non-supervisors, perhaps it will be classifying each worker on an 

individualized basis, and what is the point of a class action, where there exists no 

common thread, no common stroke among class members?

For the foregoing reasons, class certification under Rule 23 is inappropriate 

here, and the corresponding motion will be denied.

2. Owing to his prior convictions and a lack of forthrightness 

with his own counsel, Mr. Sloane is an inadequate 

representative, whose propensity for untruthfulness would 

taint the fair and efficient administration of justice for the 

other putative class members.

“Courts of appeals have held that unique defenses bear on both the typicality 

and adequacy of a class representative.”186 In particular, the Third Circuit has 

explicitly recognized “the challenge presented by a defense unique to a class 

representative—the representative’s interests might not be aligned with those of 

the class, and the representative might devote time and effort to the defense at the 

expense of issues that are common and controlling for the class.”187 “A proposed 

 

186 Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006).

187 Id. at 297.

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class representative is neither typical nor adequate if the representative is subject to 

a unique defense that is likely to become a major focus of the litigation.”188

That a class representative’s personal characteristics may be scrutinized is 

nothing new. In fact, one of the earliest and most persuasive statements of this 

principle was provided by the late Honorable Malcolm Muir of the Williamsport 

division of this Court in 1974. Judge Muir explained that “facts regarding the 

personal qualities of the representatives themselves are relevant, indeed necessary, 

in determining whether the representative parties will fairly and adequately protect 

the interests of the class.”

189 According to Judge Muir, “Because absent members 

of the class would be conclusively bound by the results obtained by these 

representatives and their attorneys, due process requires that they be more than pro 

forma representatives.”190 Judge Muir also cited the following applicable passage 

from Wright & Miller, before denying certification on the ground of inadequacy:

Quality of representation embraces both the competence of the legal 

counsel of the representatives and the stature and interest of the 

named parties themselves. The general standard appears to be that the 

representatives must be of such a character as to assure the vigorous 

prosecution or defense of the action so that the members’ rights are 

certain to be protected. Thus courts have looked to factors such as the 

 

188 Id.at 301.

189 In re Goldchip Funding Co., 61 F.R.D. 592, 594 (M.D. Pa. 1974) (internal quotation marks 

omitted).

190 Id.

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representatives’ honesty, conscientiousness, and other affirmative 

personal qualities.191

In cases involving much less dishonesty and criminal conduct than Sloane, 

courts have found plaintiffs to be inadequate class representatives. See Weisman v. 

Darneille, 78 F.R.D. 669, 671 (S.D.N.Y. 1978) (“Plaintiff’s conviction and 

subsequent conduct here convince us that he lacks the ‘honesty, conscientiousness, 

and other affirmative personal qualities’ required of a class representative”); 

Kirkpatrick v. Ironwood Communications, Inc., No. C05-1428JLR, 2006 WL 

2381797 (W.D. Wash. Aug. 16, 2006) (“Mr. Miller will likely be subject to 

multiple attacks on his credibility based on his past crimes. These attacks will 

likely severely limit Mr. Miller’s ability to vigorously pursue the interests of absent 

class members. For these reasons, Mr. Miller is not an adequate class 

representative.”). See also Davidson v. Citizens Gas & Coke Utility, 239 F.R.D. 

225, 228 (S.D. Ind. 2006) (adequacy not met due to felony convictions, including 

burglary and theft); Maddox & Starbuck, Ltd. v. British Airways, 97 F.R.D. 395, 

396-97 (S.D.N.Y. 1983) (criminal conviction precluded plaintiff from being class 

representative).

Mr. Sloane has referred to himself as “an alcoholic and addict who made 

some irresponsible judgments and decisions.”192 Upon recounting each of his 

 

191 Id. (citing Wright and Miller, FEDERAL PRACTICE AND PROCEDURE, § 1766, pp. 632–634).

192 Decl. of Thomas Sloane, ECF No. 17 Ex.1 ¶ 4.

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criminal history incidents, he notes of a 2010 burglary charge that “Frankly, I do 

not remember much at all about that night. I was in an alcoholic blackout.”193

These are not defense counsel’s characterizations; they are Plaintiff’s own words. 

Three of Mr. Sloane’s offenses involved burglary or theft, one charge having 

followed an attempt by Mr. Sloane to break into a coin laundry machine.194 In 

darkly comedic fashion, Mr. Sloane also recounted the facts leading up to a 

criminal mischief conviction that he sustained while he was incarcerated:

In 2010, while confined in jail, I was charged and convicted of 

Criminal Mischief for having damaged the sprinkler head in my cell. 

Four or five of us were sitting around in my cell and someone said 

that the sprinkler head would spray foam if you stuck a pencil in it. I 

didn’t believe him, so I stuck the point of a pencil in the hole in the 

center of the sprinkler head (and it sprayed foam).195

My reasoning holds especially true given that the salary basis issue is a core 

component to this litigation. In sum, then, the outcome of this case may turn upon 

whether certain workers were paid even for days on which they did not work. This 

means that Mr. Sloane’s credibility and his shifting testimony as to the July 2014 

weekend will be placed front-and-center for the jury’s determination, following 

what I would presume to be a thorough cross-examination by defense counsel. 

Thus, those facets of Mr. Sloane’s personal claim is unique to him and uniquely 

 

193 Id. ¶ 5(f).

194 See id. ¶ 5(b), (c), & (f).

195 See id.

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troubling. The propriety of the other putative class member’s claims should not 

rightfully rise or fall based on personal credibility determinations.

This Court simply cannot in good faith install Mr. Sloane as the chief 

representative of the remaining class members’ interests. This is particularly true, 

given that a key triable issue would be whether Mr. Sloane was paid on a salary 

basis. Mr. Sloane’s credibility and his shifting story about the July 2014 weekend 

will both be central to that determination 

V. CONCLUSION

Consistent with foregoing analysis, Plaintiffs’ motions for certification 

pursuant to 29 U.S.C. § 216(b) and Federal Rule of Civil Procedure 23 are denied. 

The putative opt-in Plaintiffs are dismissed.

An appropriate Order memorializing my findings and resetting the pertinent 

case management deadlines follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

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