Sarviss v. General Dynamics Information Technology, Inc. (663 F. Supp. 2d 883, 2009)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT, DENYING MOTION FOR CERTIFICATION OF COLLECTIVE ACTION, AND DENYING MOTION FOR CLASS CERTIFICATION

[Defendant’s Motion for Summary Judgment filed on April 6, 2009; Plaintiffs Motions filed March 27, 2009]

DEAN D. PREGERSON, District Judge.

This matter comes before the Court on three motions filed by the parties. Plaintiff John D. Sarviss (“Sarviss” or “Plaintiff’), who brings this wage and hour case as a purported class action and collective action, has filed a Motion for Certification of a Collective Action as to his Fail’ Labor Standards Act (“FLSA”) claims and a Motion for Class Certification of his California state wage and hour claims. In addition to opposing Plaintiffs certification motions, Defendant General Dynamics Information Technology (“GDIT” or “Defendant”) moves for summary judgment on Plaintiffs claims. After reviewing the materials submitted by the parties, hearing oral argument, and considering the issues raised in both, the Court grants in part and denies in part Defendant’s Motion and denies Plaintiffs Motions for the reasons stated below.

I. BACKGROUND

Plaintiff filed this action in California state court on January 28, 2008 against his former employer, GDIT. GDIT provides information technology solutions and services to military, government, and commercial customers within the United States and around the world, including, as relevant to Sarviss, in connection with some of the United States’ defense and homeland security projects. Def.’s Statement of Uncontroverted Facts and Conclusions of Law, ¶ 1; Pl.’s Statement of Genuine Issues in Opp’n to Def. Statement, ¶ 1. Defendant removed the action to this Court on March 3, 2008.

A. Plaintiff John Sarviss and His Employment with GDIT

In late April or early May 2007, Plaintiff John Sarviss saw and responded to a GDIT job posting on the internet for “qualified AH-1F and UH-1H/Bell 412 helicopter pilots to support [GDIT’s] aviation requirements in [P]akistan.” DSUF ¶ 2 (quoting Garrison Decl., Ex. A at 170); PSGI ¶ 2. AH-1F and UH-IH/Bell 412 are models of helicopters used for military and defense purposes. Id. The job posting required candidates to “be recognized as an Army Master Aviator and be qualified as either an SIP or IP with in-depth experience using NVGs.” Id. at ¶4 (quoting Garrison Decl., Ex. A at 170). An “Army Master Aviator” must have 2,000 flight hours. Id. at 115. The terms “SIP” and “IP” are acronyms for Standardized Instructor Pilot and Instructor Pilot, respectively. Id. at ¶ 6. In addition to being a pilot instructor, an SIP typically ensures that flight standards are consistent for all of the IPs. Id.

Plaintiff John Sarviss is a California resident and a former United States Army helicopter pilot. Compl. ¶ 1; Garrison Decl., Ex. A at 169. Sarviss had approximately eight times the flight hours required to be considered an Army Master Aviator, and his background and training included coursework to become an SIP and training and experience working with NVGs. DSUF ¶ 7; PSGI ¶ 7. Sarviss had flown helicopters, including AH-1F and UH-1H/Bell412 helicopters, for more than 16,000 hours and had approximately 4,700 hours flying at night and 260 hours of flying with NVGs. Id. at ¶ 8.

On or about May 14, 2007, GDIT hired Sarviss to work with the team of NVG helicopter pilot trainers in Pakistan. Id. at ¶ 9. Plaintiffs job title was “Operations Analyst V,” a salaried position classified as exempt from overtime by GDIT, and he held no other positions with GDIT. DSUF ¶ 11. On the basis of the mission summary, Sarviss understood that his job would be “training Pakistani helicopter pilots in night vision goggle combat tactics in support of the global war on terror.” Garrison Decl., Ex. A (Sarviss Deposition) at 30:8-12.

GDIT’s contract with the U.S. Government required Sarviss to complete his training before deploying to Pakistan. DSUF ¶ 14; PSGI ¶ 14. Immediately after being hired, from May 14 to May 18, 2007, Sarviss attended the U.S. Army Security Assistance Team Training Orientation Course at Fort Bragg, North Carolina. Id. at ¶ 13. These training sessions, which included other trainees deploying to countries all over the world, addressed topics related to Sarviss’s mission, including an orientation about Pakistan, counter-surveillance, counter-terrorism procedures, weapons training, and hostage survival. Id. at ¶ 15. The training courses at Fort Bragg lasted one work week for eight hours each day. Garrison Decl., Ex. A at 50:18-22. Sarviss claims that he spent an additional 20 hours that week engaging in tasks to prepare for his deployment, including obtaining equipment at Pope Air Force Base, filling out additional paperwork, receiving the necessary vaccinations, and obtaining his passport, visa, and contractor access card. DSUF ¶ 18; PSGI ¶ 18. Shortly after completing the training at Fort Bragg, Sarviss attended a five-day flight safety course in the Dallas/Forth Worth, Texas area. Id. at ¶ 19. The course was provided by a third party and served as a refresher training for flying the Bell 412 helicopter in which Sarviss would be training members of the Pakistani Air Force. Id. at ¶ 20. While at that training, Sarviss attended the course from 8:00 a.m. to 5:00 p.m. each day and was provided two 15-min-ute rest breaks and a 30-minute lunch break. Garrison Deck, Ex. A at 61:8-62:2. At night, Plaintiff attended flight simulation exercises for another 1.5-2.5 hours. DSUF ¶ 22; PSGI ¶ 22.

After completing the training course in Texas, Sarviss returned to his home in California to await deployment to Pakistan. Id. at ¶23. He waited there for approximately two weeks, during which time he was not asked to work more than 8 hours per day or 40 hours per week and during which time he was not denied any meal or rest periods. Id. at ¶¶ 23, 25, 26. While awaiting deployment in California, Plaintiff received his base salary. DSUF ¶ 12; PSGI ¶ 12. During that time, Sarviss spent time preparing for his deployment and purchased supplies; the parties dispute whether these activities were at Sarviss’s “own initiative.” Id. at ¶¶ 12, 24.

During the first week of June 2007, Sarviss deployed to Pakistan, where he remained for around 90 days. Garrison Deck, Ex. A at 88:15-89:1. Sarviss described his “primary job” while in Pakistan as “keep[ing] myself and my co-pilot alive because of them lack of knowledge on how to operate an aircraft at night.” Garrison Deck, Ex. A at 92:6-8. The parties dispute the amount of “teaching” or “training” Sarviss actually did while in Pakistan. DSUF ¶ 29; PSGI ¶ 29. GDIT employee John Landis taught classes on the ground. At the very least, however, Sarviss admits that he “was the first person to come [to Pakistan] and within one week of being [there] was actually training students and had met Lieutenant Colonel Shahid’s approval.” Garrison Reply Deck, Ex. A (Sarviss Depo.) at 51:6-10; see Garrison Deck, Ex. A (Sarviss Depo.) at 121:1-10; id. at 128; see also DSUFR at 29-31. During a training flight, Sarviss typically would put NVGs on the trainee and give him the controls to the helicopter. Sarviss constantly monitored the helicopter’s instruments, and took the controls away from the pilot if necessary. Sarviss also checked to ensure that the pilot trainee was interpreting the terrain correctly through the NVG. DSUF ¶ 31; PSGI ¶ 31. While in Pakistan, Sarviss instituted a rule with the trainees that a pilot should return the helicopter with 700 pounds of fuel remaining. Garrison Deck, Ex. A at 149:21-150:7. Sarviss was required to rely upon his thirty-plus years of military and civilian experience and training while flying with Pakistani trainees. DSUF ¶ 36. Sarviss also prepared instrument approaches for “divert” fields; located a survival escape and evasion area, and created and put into place a plan; and conducted approximately 10 “captain check rides,” during which he would evaluate and certify a trainee as an aircraft commander. DSUF ¶33. Sarviss claims the Pakistani Air Force made him the SIP for the entire squadron, but the parties dispute whether this was within the scope of his GDIT assignment. DSUF ¶ 34; PSGI ¶ 34.

While in Pakistan, Sarviss frequently-worked in excess of 8 hours per day and 40 hours per week. In some weeks, he worked in excess of 70 or 80 hours per week. DSUFR at 59-60.

On July 17, 2007, Sarviss tendered his resignation to GDIT. DSUF ¶37; PSGI ¶ 37. In that letter, Sarviss stated that he “still ha[d] not been reimbursed for expenses incurred on your behalf over 60 days ago for several thousand dollars.” DSUFR at 67. On or about August 7, 2007, Sarviss submitted an amended resignation letter seeking to move his last day of employment to September 4, 2007. DSUF ¶ 37; PSGI ¶ 37.

During his employment with GDIT, GDIT paid Sarviss an annual salary of $83,200.00, paid biweekly at $3,200.00 per pay period. Id. at ¶ 39. GDIT paid Sarviss his base salary while he attended training in North Carolina and Texas and also while he was at home in California waiting to deploy to Pakistan. Id. While working in Pakistan, in addition to his base salary, GDIT paid Sarviss an additional 25% of his base salary for “Danger Pay,” an additional 20% “Hardship Differential,” and a full $30,000 contractual “completion” bonus. Id. at ¶¶ 40-41. Plaintiffs actual pay can be summarized as follows: (1) $6,400 for the first four weeks; (2) $27,840.00 for the 12 weeks in Pakistan; and (3) a $30,000.00 completion bonus. Thompkins Deck ¶ 11.

The GDIT “International Assignment Provisions for John D. Sarviss” stated, under “Scheduled Hours,” that the assignment was “based on 40 hours per week.” Thompkins Deck, Ex. A at 9. It is undisputed that Sarviss was not compensated for overtime he worked or for missed meal and rest periods. DSUFR at 60.

B. The Complaint

Plaintiffs Complaint seeks to bring eight causes of action against GDIT. The Complaint alleges one cause of action pursuant to the federal Fair Labor Standards Act (“FLSA”), six causes of action pursuant to the California Labor Code (“Labor Code”), and one cause of action pursuant to California’s unfair competition law, California Business and Professions Code § 17200 (“UCL”).

In his FLSA claim, Plaintiff alleges that Defendant mis-classified Plaintiff as an exempt employee and failed to pay him overtime in violation of 29 U.S.C. § 207(a). Compl. ¶¶ 54-59.

Plaintiff brings six claims under the California Labor Code. His First Claim for Relief alleges that GDIT improperly classified Plaintiff as “exempt” and, as a result, failed to pay overtime in violation of California Labor Code §§ 218 & 1194(a) and Industrial Welfare Commission (“IWC”) Wage Order No. 4. Compl. ¶¶ 35-49. The Second Claim for Relief alleges that GDIT violated California Labor Code § 226 and IWC Wage Order No. 4 in failing to provide itemized wage statements showing total hours worked, the applicable hourly rates, and the legal name and address of the employer. Compl. ¶¶ 50-53. The Fourth and Fifth Claims for Relief allege that GDIT failed to provide Plaintiff with adequate meal periods and rest periods in violation of California Labor Code § 226.7 and IWC Wage Order No. 4. Compl. ¶¶ 60-67. Plaintiffs Sixth Claim for Relief alleges that GDIT failed to pay wages earned and unpaid promptly upon termination or resignation in violation of Labor Code §§ 201-202 and seeks continuing wages pursuant to section 203. Compl. ¶¶ 68-71. The Seventh Claim for Relief alleges that GDIT failed to reimburse Plaintiff for his expenditures in violation of California Labor Code § 2802. Compl. ¶¶ 72-75.

Finally, the Eighth Claim for Relief alleges that GDIT’s acts “constitute a continuing and ongoing unlawful activity prohibited by section 17200 et seq. of the California Business and Professions Code.” Compl. ¶ 76; see id. at 77-90.

C. Class and Collective Action Facts and Allegations

Plaintiff seeks to bring this action as a representative action on behalf of himself and others similarly situated. With respect to the California claims, Sarviss originally sought to bring his claims “on behalf of all residents of the State of California who, at any time during the four years preceding the filing of the Complaint through the filing of a motion for class certification, received a pay stub or wage statement from the Defendant or its predecessor in interest, Anteon International Corporation.” Compl. ¶¶ 5, 21. With respect to the FLSA claim, Sarviss originally sought to bring the action as an opt-in collective action pursuant to 29 U.S.C. § 216(b) “on behalf of all persons who, at any time during the three years preceding the filing of this Complaint, were or have been employed as persons governed by Industrial Welfare Commission Wage Order No. 4-2001 regulating wages, hours and working conditions in the technical, clerical, mechanical and similar occupations by GDIT and who did not receive or have not received overtime compensation as required by federal law.” Compl. ¶¶ 5, 31. As discussed below, Sarviss narrowed his certification requests in his Replies to GDIT’s Oppositions to both certification motions.

II. MOTION FOR SUMMARY JUDGMENT

First, the Court addresses GDIT’s Motion for Summary Judgment. GDIT moves for summary judgment as to the entirety of Plaintiffs Complaint, or, in the alternative, for partial summary judgment. GDIT argues that summary judgment must be entered in its favor as to the FLSA claims both because the FLSA does not apply and because Plaintiff was exempt from its requirements. GDIT also argues that summary judgment must be entered in its favor as to the California claims both because California wage and hour law does not apply and because Plaintiff was administratively exempt.

A. Legal Standard

Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”; and material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248,106 S.Ct. 2505. A party opposing summary judgment must come forward with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed. R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995).

Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). No genuine issue of fact exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Plaintiff appears to agree that there are no genuine issues of material fact underlying Defendant’s legal arguments as to whether the FLSA and/or California wage and hour law applies. Plaintiff does argue, however, that there are genuine issues of material fact as to whether Plaintiff is exempt under either the FLSA or California wage and hour law.

B. Discussion

1. Plaintiffs FLSA Claims

First, Defendant moves for summary judgment on Plaintiffs FLSA claims. The parties agree that the FLSA does not apply to Plaintiffs service in Pakistan, which comprises the majority of his employment with GDIT. See 29 U.S.C. § 213(f) (“The provisions of sections 206, 207, 211, and 212 of this title shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country[.]”). The FLSA therefore indisputably does not provide a basis for overtime pay while Sarviss was in Pakistan. Accordingly, the only question is whether Plaintiff can succeed on his FLSA claims for the time he spent in training in North Carolina and Texas. Defendant argues that summary judgment should be granted in its favor for two independent reasons: (1) Plaintiff falls under the FLSA’s “highly paid employee” exemption and (2) Plaintiff falls under the FLSA’s administrative exemption. An employer has the burden of proof to establish the applicability of an exemption under the FLSA. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Accordingly, to succeed on summary judgment here, GDIT must establish the absence of a genuine issue of material fact as to each element of the relevant exemption. Additionally, GDIT must satisfy this burden against the legal backdrop that “[wjhether employees are exempt from the requirements of the FLSA is primarily a question of fact.” Nigg v. U.S. Postal Serv., 555 F.3d 781, 788 (9th Cir.2009) (internal quotation marks and brackets omitted).

a. The “Highly Paid Employee” Exemption

First, GDIT argues that Sarviss falls under the “highly paid employee” exemption from the FLSA. Because “[a] high level of compensation is a strong indicator of an employee’s exempt status,” under the FLSA high compensation “eliminat[es] the need for a detailed analysis of the employee’s job duties.” 29 C.F.R. § 541.601(c). To fall within this exemption (the requirements of which the parties do not dispute), an employee must (1) have a “total annual compensation of at least 100,-000,” id. § 541.601(a); (2) “customarily and regularly perform! ] any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee,” id.; and (3) have included in his primary duty “performing] office or non-manual work,” id. § 541.601(d). The parties also do not appear to dispute that, although the FLSA does not apply to Plaintiffs service while he was in Pakistan, the applicability of an exemption turns on the duties of the entire job. In sum, the parties do not dispute the FLSA law so much as the extent to which the facts implicate it.

i. Total Annual Compensation of At Least $100,000

To qualify for the exemption, an employee must make at least $100,000 in total annual compensation. “Total annual compensation” may include “commissions, non-discretionary bonuses and other nondiscretionary compensation earned during a 52-week period,” but does not include board, lodging, payments for medical insurance and life insurance, contributions to retirement plans, or the cost of other fringe benefits. 29 C.F.R. § 541.601(b)(1). For an employee who does not work a full year for the employer, the employee may qualify for the exemption if the employee “receives a pro rata portion” of $100,000 “based upon the number of weeks that employee will be or has been employed.” 29 C.F.R. § 541.601(b)(3). Additionally, an employee must receive “at least $455 per week paid on a salary or fee basis.” Id. § 541.601(b).

GDIT has met its burden to show that Sarviss qualifies for this first element of the exemption using the pro rata approach, and Sarviss has not shown that there are genuine issues of material fact as to that prong. Even excluding the $30,000 completion bonus, Sarviss’s average weekly salary would have led to an annual compensation of $111,280.00. See Thompkins Deck ¶ 11; Def.’s Mem. at 10-11 & n. 6; see 29 C.F.R. § 541.601(b)(3). In each week, his salary exceeded $455.00. Although Sarviss asserts in a footnote that none of his salary was guaranteed, see PL’s Opp’n at 8 n. 6, he does not explain (through legal authority or otherwise) why the pay he actually received and that formed the basis of GDIT’s calculation was in any way “discretionary.” Accordingly, the Court finds that there is no genuine issue of material fact as to this element.

ii. Customary and Regular Performance of One or More Exempt Duties

The second prong of the exemption requires an employee to “customarily and regularly perform!] any one or more of the exempt duties of an executive, administrative, or professional employee.” 29 C.F.R. § 541.601(b). The performance of an exempt duty will be considered customary and regular where it occurs on a basis that is “greater than occasional but which, of course, may be less than constant. Tasks or work performed ‘customarily and regularly’ includes work normally and recurrently performed every workweek,” as opposed to “isolated or one-time tasks.” 29 C.F.R. § 541.701. Here, GDIT asserts that Sarviss qualifies under this prong with respect to the duties of either an administrative or a professional employee.

(A) Administrative

An employee will fall under the administrative exemption if the employee is one whose primary duty “is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” and “includes the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(2)-(3). For the purposes of the highly compensated employee exemption, the Court need only be satisfied that one of these prongs is met, and the Court need not engage in a detailed analysis of the other prong. See Amendola v. Bristol-Myers Squibb Co., 558 F.Supp.2d 459, 476-77, 478 (S.D.N.Y. 2008).

An employee meets the first requirement—the performance of “office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers”—where the employee “perform[s] work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a). Employees “acting as advisers or consultants to their employer’s clients or customers” may satisfy this first prong. Id. § 541.201(c). The specific examples used by the regulation are those of business consultants.

An employee meets the second requirement when he exercises “discretion and independent judgment with respect to matters of significance.” The Department of Labor’s regulations define the exercise of discretion and independent judgment in part as follows:

In general, 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 various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed. [¶] The phrase “discretion and independent judgment” must be applied in the light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance 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, even if the employee’s assignments are related to operation of a particular segment of the business; 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; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances. [¶] [Additionally, t]he exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision.

29 C.F.R. § 541.202(a)-(e).

GDIT argues that Sarviss satisfied both of these prongs because the nature of job required “customarily and regularly” training Pakistani pilots. With respect to the non-manual labor prong, GDIT argues that Sarviss “aet[ed] as an adviser to train Pakistani Air Force pilots in night flight operations.” See Def.’s Mem. at 14. Although the Court recognizes that employees who act as advisers or consultants for customers may satisfy the non-manual labor prong, the Court is not convinced that the nature of Plaintiffs job places him into such a category. As far as the Court can tell, the examples in the regulations do not specifically list training. With respect to consulting performed for the Pakistani commander, it appears that there is a genuine issue of material fact as to whether this occurred during the course of Plaintiffs employment. See Sarviss Decl., Ex. 1 at 165-66.

Additionally, GDIT argues that Sarviss “customarily and regularly” engaged in the exercise of discretion and independent judgment with respect to matters of significance in training the pilots. GDIT supports its arguments with various portions of Sarviss’s deposition testimony that indicate, for example: (1) that he worked with different students of different skill levels each night, Garrison Decl., Ex. A at 120-21; (2) that he was “constantly monitoring the instruments, taking the controls away from them[,] ... making sure that they are seeing what I’m seeing, that they are interpreting the terrain correctly,” id. at 155; (3) that he instituted a rule requiring the return of a helicopter with 700 pounds of fuel, id. at 149-50; (4) that he did “captain check rides” to evaluate and certify a trainee, id. at 147-48; and (5) that he could not rely on Landis to deal with issues of inadequate Pakistani skill level, id. at 129-30. In a declaration in support of his Opposition to this motion, Sarviss disputes whether he actually did any training in how to fly helicopters because the phots were already experienced and the real “training” consisted of reading materials and on-the-ground instruction, and suggests that he was merely a co-pilot or crew member. Sarviss Decl. ¶¶ 17, 19. Rather, Sarviss argues, his job duties “began and ended with flying a helicopter on an as-needed basis” and that there is “no evidence that his ‘discretion’ extended beyond the physical operation of the helicopter.” Pl.’s Opp’n at 10:21-22, 14:2-3. Additionally, Sarviss disputes the nature of certain of his more discretionary tasks, asserting that they were outside of his GDIT job duties.

Although the Court is inclined to find that Sarviss’s employment involved significant discretion and independent judgment, the Court finds that the factual, factor-driven “discretion and independent judgment” has not been indisputably satisfied on this record. To the extent that Sarviss argues he provided no “training,” the Court finds that his deposition testimony flatly contradicts such a statement, and disregards the paragraphs of his declaration that suggest otherwise. However, the Court finds that genuine issues remain as to whether his training required discretion and independent judgment or rather the application of highly technical training. Accordingly, the Court finds summary judgment inappropriate on this ground.

(B) Professional Exemption

Alternatively, GDIT argues that Sarviss performed one or more duties that fall under the professional exemption. An employee will be deemed a professionally-exempted employee where the employee’s “primary duty is the performance of work” “[requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction” or “[requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a)(2)(i)-(ii). Under the “learned professional” prong of the exemption, work is exempt where it (1) requires advanced knowledge that is (2) in a field of science or learning and (3) is customarily required by a prolonged course of specialized intellectual instruction. 29 C.F.R. § 541.301(a). Work requires advanced knowledge under the exemption if it is “predominantly intellectual in character” and includes work “requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work,” in that an employee will generally use the advanced knowledge “to analyze, interpret or make deductions from the varying facts or circumstances.” 29 C.F.R. § 541.301(b). Advanced knowledge is in a “field of science or learning” when that field is traditional, “as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.” Id. § 541.301(b). Additionally, exempt work is restricted to “professions where specialized academic training is a prerequisite for the entrance into the profession,” as opposed to “occupations that customarily may be performed with only general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes” or “occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.” Id. § 541.301(c)-(d).

Separately, the exemption also applies to “any employee with [ (1) ] a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and [ (2) ] who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.” 29 C.F.R. § 541.303(a); see id. § 541.303(d) (“The requirements of § 541.300 ... do not apply to the teaching professionals described in this section.”). Exempt teachers explicitly include “aircraft flight instructors.” Id. § 541.303(b); see also Paul v. Petroleum Equip. Tools Co., 708 F.2d 168, 170 n. 1 (5th Cir.1983) (under prior regulations, aircraft flight instructor “expressly falls within the professional exemption for teachers”).

GDIT argues in the alternative that Sarviss performed duties that fell under the learned professional prong or that Sarviss performed exempt duties under this exemption through his role as a helicopter flight instructor. There is no genuine issue as to whether Sarviss instructed the other pilots. While Sarviss attempts to claim that his job “began and ended with flying a helicopter on an as-needed basis,” see Def.’s Opp’n at 12, his deposition testimony makes clear (and supports no reasonable inference to the contrary) that he understood his job to be training helicopter pilots when he signed his contract, and that he did in fact train and instruct the Pakistani pilots, though classroom instruction took place on the ground with Landis. Additionally, it is undisputed that Sarviss was trained as an instructor pilot. DSUF ¶ 7; PSGI ¶ 7.

Generally, performing instruction is not sufficient to qualify for the teaching exemption because an employee must work at a formal educational institution. See Hashop v. Rockwell Space Operations Co., 867 F.Supp. 1287, 1295 & n. 4 (S.D.Tex. 1994) (under prior version of regulation, shuttle simulator instructors do not fall under teacher exemption because they weren’t associated with educational establishment and were not certified). Where the highly paid employee exemption is at issue, however, an employee need only perform “one or more” exempt duties. By performing helicopter and NVG instruction, Sarviss satisfies the “one or more” requirement of the Highly-Paid Employee Exemption.

iii. Primary Duty

Finally, the employee’s “primary duty” must be the performance of office or non-manual work. Employees do not primarily perform office or non-manual work when those employees are, for example, “non-management production-line workers and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers, laborers and other employees who perform work involving repetitive operations with their hands, physical skill and energy.” 29 C.F.R. § 541.601(d). Such employees “are not exempt under this section no matter how highly paid they might be.” Id. A “primary duty” is “the principal, main, major or most important duty that the employee performs,” and should be determined on the basis of “all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.” Id. § 541.700(a). Factors to consider

include, but are not limited to the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Id.

The Court finds that there are genuine issues of material fact as to whether Plaintiffs “primary duty” involved “office or non-manual work.” Accordingly, the Court finds that summary judgment on this prong—and therefore on the Highly Paid Employee Exemption as a whole—is inappropriate.

b. Administrative Exemption

Defendant alternatively argues that Plaintiff meets all of the requirements of the administrative exemption. For the reasons discussed above in subsection II(B)(l)(a)(ii)(A), genuine issues of material fact remain and make summary judgment inappropriate.

2. Plaintiff’s California Overtime and Meal and Rest Period Claims

With respect to Plaintiffs California overtime and meal and rest period claims, Defendant moves for summary judgment on two basic bases. First, GDIT argues that the California Labor Code does not apply because the only services Plaintiff performed for Defendant were performed entirely outside of California. According to GDIT, both the presumption against the extraterritorial application of California laws and the Dormant Commerce Clause preclude the application of California law. Alternatively, GDIT argues that the California administrative exemption applies. The Court grants this portion of Defendant’s Motion on the ground that California wage and hour law does not apply to Sarviss where he was performing services outside of California. Because Plaintiff does not seek compensation for overtime or missed meal and rest periods earned while he was in California, the Court grants summary judgment in favor of Defendant on the California overtime and meal and rest period claims. This holding does not address Plaintiffs wage statement and reimbursement claims to the extent they arise from the time period where Plaintiff was in California awaiting deployment.

a. Applicability of California Labor Code

GDIT moves for summary judgment on Plaintiffs California claims on the ground that California wage and hour law cannot apply to Plaintiffs time in North Carolina, Texas, or Pakistan, i.e., the large majority of his roughly four-month employment with GDIT. GDIT argues that the extraterritorial application of California wage and hour law is inappropriate here because there is no indication that the California legislature attempted to overcome the presumption against extraterritorial application. Sarviss argues that the extraterritorial application of the law is unclear in his situation and that California’s policy of construing wage and hour laws broadly in favor of the employee should tip the scale in favor of extraterritorial application for California residents.

Sarviss appears to argue in his Opposition that he “perform[ed] part of [his] work in California.” PL’s Opp’n at 21. His deposition makes apparent that he spent the time in California preparing for his trip by securing supplies. See DSUF ¶ 24; PSGI ¶ 24. The parties dispute whether this was part of his employment. PSGI ¶ 24; DRSUF at 25-26. Again, however, it is undisputed that Sarviss seeks overtime and payment for missed meal and rest periods only incurred outside of California. DSUF ¶¶ 25-26; PSGI ¶¶ 25-26.

California law contains a presumption against extraterritorial application of remedial statutes. As the California Supreme Court has put it:

Although a state may have the power to legislate concerning the rights and obligations of its citizens with regard to transactions occurring beyond its boundaries, the presumption is that it did not intend to give its statutes any extraterritorial effect. The intention to make the act operative, with respect to occurrences outside the state, will not be declared to exist unless such intention is clearly expressed or reasonably to be inferred ‘from the language of the act or from its purpose, subject matter or history.’

North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 4, 162 P. 93 (1916), reaffirmed in Diamond Multimedia Sys., Inc. v. Superior Court, 19 Cal.4th 1036, 1059, 80 Cal.Rptr.2d 828, 968 P.2d 539 (1999).

On the basis of the undisputed facts and the unclear law on these issues, the Court finds (1) that the presumption against extraterritorial application of California wage and hour law applies here and (2) that Sarviss does not fall under the presumptive application of the IWC wage orders reserved for California “wage earners.” There is no “clear expression]” of extraterritorial application for California wage and hour laws. Although some provisions of the Labor Code appear to suggest that the Industrial Wage Commission’s orders extend only to employment occurring in California, see Cal. Labor Code §§ 1173 & 1193.5 (“in this state”), the Labor Code also more generally provides that the Department of Industrial Relations is charged with “fostering], promoting], and developing] the welfare of the wage earners of California,” id. § 50.5. Even in light of this language, there is nothing in the statutory scheme itself that “explicitly defines or limits” the IWC’s authority. Tidewater Marine W., Inc. v. Bradshaw, 14 Cal.4th 557, 577, 59 Cal.Rptr.2d 186, 927 P.2d 296 (1996).

The language of the wage orders and Labor Code sections leaves the presumption against extraterritorial application unrebutted, and the California Supreme Court has not decided whether the Labor Code’s language or purpose impliedly suggests an intent to apply those laws to events occurring outside of California. In Tidewater, the California Supreme Court addressed whether California wage and hour law applied to California residents working in the Santa Barbara channel, including the issue of whether the Santa Barbara channel was part of California. It is perhaps undisputed here that “California employment laws implicitly extend to employment occurring within California’s state law boundaries.” 14 Cal.4th at 565, 59 Cal.Rptr.2d 186, 927 P.2d 296. With respect to employment outside the state’s territorial boundaries, the Tidewater court first pointed to worker’s compensation statutes in noting that “[i]n some circumstances state employment law explicitly governs employment outside the state’s territorial boundaries.” Id. at 577, 59 Cal.Rptr.2d 186, 927 P.2d 296. Distinguishing explicit statutory language in the workmen’s compensation scheme from the language in the IWC wage orders, the court left open room for statutory intent to be clarified:

The Legislature may have similarly intended extraterritorial enforcement of IWC wage orders in limited circumstances, such as when California residents working for a California employer travel temporarily outside the state during the course of the normal workday but return to California at the end of the day. On the other hand, the Legislature may not have intended IWC wage orders to govern out-of-state businesses employing nonresidents, though the nonresident employees enter California temporarily during the course of the workday.

Id. at 577-78, 59 Cal.Rptr.2d 186, 927 P.2d 296. Overall, the court noted that it was “not prepared, without more thorough briefing of the issues, to hold that IWC wage orders apply to all employment in California, and never to employment outside California.” Id. at 578, 59 Cal.Rptr.2d 186, 927 P.2d 296. Likewise, the court “express[ed] no opinion as to whether the trial court can enjoin the application of IWC wage orders to crew members who work primarily outside California’s state law boundaries[.]” Id. at 579, 59 Cal.Rptr.2d 186, 927 P.2d 296.

Though the Tidewater court suggested that there was nothing to overcome the presumption against extraterritorial application in the text and declined to directly address the issue, the court did explain that IWC wage orders presumptively apply to California wage earners. That is, though it did not decide the potential extraterritorial application of the IWC wage orders, the Tidewater court did find “California’s territorial boundaries ... relevant to determining whether IWC wage orders apply.” Id. at 578, 59 Cal.Rptr.2d 186, 927 P.2d 296. The court explained a potentially competing presumption: “[i]f an employee resides in California, receives pay in California, and works exclusively, or principally, in California, then that employee is a ‘wage earner of California’ and presumptively enjoys the protection of IWC regulations.” Id. at 578, 59 Cal.Rptr.2d 186, 927 P.2d 296. The court then cited United Air Lines, Inc. v. Industrial Welfare Com., 211 Cal.App.2d 729, 735, 748-749, 28 Cal.Rptr. 238 (1963), describing that case as “assuming] that IWC regulations apply to persons who are domiciled in California but work principally outside the state.” Tidewater, 14 Cal.4th at 578, 59 Cal.Rptr .2d 186, 927 P.2d 296. Because the Tidewater court found that the employees “reside[d] in California, receive[d] pay in California, and work[ed] in California,” the court found that they were “wage earners of California” who “presumptively enjoy[ed] the protections of IWC wage orders.” Id. at 578-79, 59 Cal.Rptr.2d 186, 927 P.2d 296.

Sarviss does not clearly fall into this “wage earner of California” presumption. Unlike in Tidewater, the three elements that would entitle Sarviss to presumptive application of the wage orders are not met here: although it is undisputed that he is a California resident who presumably received his pay in California (as he paid California taxes), he performed the significant majority of his employment outside of California. That is, it is undisputed that Sarviss did the work he was contracted to do, and spent between eighty and ninety percent of his roughly 16 working weeks, outside of California. Indeed, this case is also not one for which the Tidewater court particularly contemplated extraterritorial application. See Tidewater, 14 Cal.4th at 577-78, 59 Cal.Rptr.2d 186, 927 P.2d 296. Rather, this case appears to fall between the two Tidewater presumptions—the presumption against application to events occurring outside of California, on the one hand, and the presumption that wage earners of California do fall under the purview of the IWC wage orders. Put simply, the law is unclear on this issue.

In Guy, the California Court of Appeal faced similar facts: one plaintiff was a resident of California but performed more than ninety percent of his work outside of California. 2004 WL 1354300 at *4. The court noted that the Tidewater court had expressly not addressed the applicability of the wage orders to a California resident who performed most of his work outside the state. Id. (citing Tidewater, 14 Cal.4th at 579, 59 Cal.Rptr.2d 186, 927 P.2d 296). Likewise, the Guy court avoided the “tough” issue by finding the application of the IWC wage order to that California resident barred by the dormant commerce clause. Id. at *4, *6-7.

The Court finds that the IWC wage orders do not apply to Sarviss in this case, even though he is a California resident. Rather, on the Court’s reading of the jurisprudence, the determinative issue is whether an employee principally works in California. Although the cases discussing the extraterritorial application of California’s wage and hour law are sparse, those decisions that do discuss it have tended to find that California wage and hour provisions do not apply to non-resident Californians who work primarily outside of California. See Priyanto v. M/S Amsterdam, et al., 2009 WL 175739 (C.D.Cal. January 23, 2009) (Matz, J.); Tidenberg v. Bidz.com, 2009 WL 605249 (C.D.Cal. March 4, 2009) (Gutierrez, J.). Plaintiff emphasizes resident status as reason enough why those cases are distinct. Based on the Court’s reading of the jurisprudence, however, the Court finds Judge Matz’s approach, which focuses on situs of the employee’s work, to be persuasive. Priyanto, 2009 WL 175739 at *6-*8. Although California will still have an interest in the working conditions of its residents, that interest is perhaps weaker where the individual neither “works exclusively, [nor] principally, in California.” See Tidewater, 14 Cal.4th at 558, 59 Cal.Rptr.2d 186, 927 P.2d 296. The focus on situs of employment as opposed to residence of the employee or the employer is consistent with the decisions of California state courts and from courts in jurisdictions outside of California. See, e.g., Guillory v. Princess Cruise Lines, Ltd., 2007 WL 102851 (Cal. Ct.App.2007) (unpublished); Peikin v. Kimmel & Silverman, P.C., 576 F.Supp.2d 654, 657 (D.N.J.2008); see also Priyanto, 2009 WL 175739 at *7-*8 (citing cases).

Tidewater’s citation to United Air Lines, Inc. v. IWC, 211 Cal.App.2d 729, 28 Cal.Rptr. 238 (1963), does not change this analysis. As mentioned above, after noting that a wage earner is presumptively entitled to the protection of IWC Wage Orders, the Tidewater court used a “Cf.” cite to United Air Lines, and parenthetically described that case as “assuming] that IWC regulations apply to persons who are domiciled in California but work principally outside the state.” Tidewater, 14 Cal.4th at 578, 59 Cal.Rptr.2d 186, 927 P.2d 296. The Court does not read this fleeting citation to suggest that the IWC wage orders presumptively apply to California residents primarily or exclusively working elsewhere. The context makes unclear whether the Tidewater court approved of the “assumption,” but at least two facts suggest it did not: Tidewater expressly used a three-element definition of “wage earner” and Tidewater expressly left this precise issue open. Moreover, the Court notes that United Air Lines found such an application to be in violation of the dormant commerce clause.

In sum, because Sarviss indisputably spent the vast majority of his employment working outside of California—and, in fact, relocated to different states and a foreign country while outside of California—the Court finds that the IWC wage order does not presumptively apply to that employment and that the presumption against extraterritorial application of the wage orders has been left unrebutted.

Two additional issues further convince the Court that this holding is the appropriate one. First, in light of GDIT’s dormant commerce clause argument, the principles that favor the avoidance of constitutional issues support this holding. The doctrine of constitutional avoidance counsels that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). A court should invoke the doctrine only if it has “grave doubts about the constitutionality of [an application].” Ileto v. Glock, 565 F.3d 1126, 1143 (9th Cir.2009). As defendants have cited at least two cases where courts have found a violation of the dormant commerce clause through the extraterritorial application of IWC wage orders in comparable situations, the Court notes that the Court’s interpretation avoids the potential dormant commerce clause issues that may arise from the application of California wage and hour law to a job that was performed almost entirely outside of California with team members from various states. Second, and relatedly, the Court notes that the majority of Sarviss’s service for GDIT took place not only outside of California, but in a foreign country, working alongside individuals from various states.

In addition, the Court is not convinced that the state policy in favor of the broad application of wage and hour law tips the result in favor of Sarviss here. Because he is a resident and because California law is unclear on whether the law applies ex-traterritorially, Sarviss argues, public policy that favors the broad application of wage and hour law should tip the balance against summary judgment. In light of the presumption against extraterritorial application, however, a lack of clarity in the law should side with that presumption. Additionally, it is not clear that broad policy goes to extraterritorial application of those laws at all, as opposed to construction of the law once it clearly applies. See Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1103, 56 Cal.Rptr.3d 880, 155 P.3d 284 (2007). Plaintiff has cited no case to the former effect, and the Court has not independently found one.

Again, Sarviss does not claim overtime or missed meal and rest periods for any of the time employed by GDIT where he was located in California. Because California law does not apply to Sarviss’s claims for overtime and missed meal and rest periods, the Court grants summary judgment in favor of GDIT on those claims to the extent he brings them under California law.

3. California Labor Code § 2802

GDIT also moves for summary judgment on Plaintiffs California Labor Code § 2802 claim. Pursuant to California Labor Code § 2802, an employer must reimburse an employee “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Cal. Labor Code § 2802(a). There is a genuine issue of material fact as to whether the items purchased while he was in California waiting for deployment to Pakistan were purchased at the direction of his employer. DSUF ¶ 24; PSGI ¶24. Accordingly, the Court denies that portion of Defendant’s Motion.

C. Conclusion

For the foregoing reasons, the Court denies GDIT’s Motion for Summary Judgment on the FLSA claims, grants GDIT’s Motion with respect to the California overtime and meal and rest period claims, and denies the Motion with respect to the remaining Labor Code claims.

III. MOTION FOR CERTIFICATION OF COLLECTIVE ACTION (FLSA)

Sarviss moves for certification of a collective action with respect to the Third Cause of Action, which alleges a violation of the FLSA, 29 U.S.C. § 216(b). Plaintiff initially sought certification of an “opt-in” class consisting of:

all natural persons who, at any time during the period from three years prior to the filing of this Complaint to the date of the filing of a motion for certification of a collective action, were or have been employed as persons governed by Industrial Welfare Commission Wage Order No. 4-2001 regulating wages, hours, and working conditions in the technical, clerical, mechanical, and similar occupations by Defendant and who did not receive or have not received overtime compensation as required by federal law.

See Pl.’s Mot. Cert. Collective Action (“Pl.’s Coll. Action Mot.”) at 2. In his Reply, however, Plaintiff modified his request to a collective action class defined as:

all natural persons, who, at any time during the period from three years prior to the filing of this Complaint to the date of filing of a motion for certification of a collective action, were or have been employed as GDIT helicopter pilots.

Pl.’s Coll. Action Reply at 1:13-26. Although GDIT did not have the opportunity to address this narrowed class definition in its papers, GDIT addressed it at length during oral argument.

A. Legal Framework

Section 207 of Title 29 of the Unites States Code requires that employers pay non-exempt employees overtime. 29 U.S.C. § 207(a). Pursuant to § 216(b), an action to recover for failure to make overtime payments “may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Only employees who give their consent in writing— or “opt in”—will be represented parties. Id. This form of representative action is commonly referred to as a “collective action.” “Because non-parties to a collective action are not subject to claim preclusion, giving notice to potential plaintiffs of a collective action has less to do with the due process rights of the potential plaintiffs and more to do with the named plaintiffs’ interest in vigorously pursuing the litigation and the district court’s interest in ‘managing collective actions in an orderly fashion.’ ” McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1139 (9th Cir.2007). District courts have considerable discretion in managing FLSA collective actions, including in determining how and when notice is provided to potential opt-in class members, see Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171-73, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), and whether certification of a § 216(b) collective action is appropriate, Leuthold, 224 F.R.D. at 466.

B. Discussion

1. Applicable Standard

The parties first dispute the standard that should apply to certification of a collective action here. Section 216(b) provides that a collective action may be maintained where the claimants are “similarly situated.” The statute does not define the term “similarly situated,” and as far as the Court can tell, both the Supreme Court and the Ninth Circuit have yet to interpret the phrase. Although courts have taken a few different approaches to certification of a collective action, see generally 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1807, most courts interpreting § 216(b), including those in the Ninth Circuit and in California, have adopted a two-step approach. See, e.g., Wynn v. Nat’l Broad. Co., Inc., 234 F.Supp.2d 1067, 1082 (C.D.Cal.2002); Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466-67 (N.D.Cal.2004); see also Newberg on Class Actions § 24:3 (4th ed.2008) (“Most courts have interpreted § 216(b) as requiring an analysis of whether plaintiffs are ‘similarly situated’ at two stages in the litigation: when notice to prospective class members is initially sought and then following discovery.”); 7B Wright, Miller & Kane § 1807.

At the first stage, the court considers whether to certify a collective action and permit notice to be distributed to putative class members. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001). Courts making a notice-stage determination tend to require “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. (internal quotation marks omitted). A plaintiff “need not show that his position is or was identical to the putative class members’ positions; a class may be certified under the FLSA if the named plaintiff can show that his position was or is similar to those of the absent members.” Freeman v. Wal-Mart Stores, Inc., 256 F.Supp.2d 941, 945 (W.D.Ark. 2003) (emphasis added). “While the standard for conditional approval at the stage of the litigation is lenient, it does require some evidentiary support. The lack of any evidence of similarity or even other potential class members precludes class certification.” Bishop v. Petro-Chemical Transp., LLC, 582 F.Supp.2d 1290, 1296 (E.D.Cal.2008); see Bernard v. Household Intern., Inc., 231 F.Supp.2d 433, 435 (E.D.Va.2002) (“Mere allegations will not suffice; some factual evidence is necessary.”); Freeman, 256 F.Supp.2d at 945; Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir.1996) (plaintiffs may meet their burden “by making substantial allegations of class-wide [violations], that is, detailed allegations supported by affidavits which successfully engaged defendants’ affidavits to the contrary” (internal quotation marks omitted)). Plaintiffs will be deemed similarly situated “when there is a demonstrated similarity among the individual situations[-]some factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged” policy or practice. Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1138-39 n. 6 (D.Nev.1999) (internal quotation marks omitted).

The second stage often occurs at the conclusion of discovery. At that stage, courts use a stricter standard of “similarly situated” by reviewing several factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Leuthold, 224 F.R.D. at 467. Where significant discovery has been completed at the time of class certification, “some courts have skipped the first-step analysis and proceeded directly to the second step.” See Lockhart v. County of Los Angeles, 2008 WL 2757080, Case No. CV 07-1680 ABC (PJWx), *4 (C.D.Cal.2008) (collecting cases); Pfohl v. Farmers Ins. Group, 2004 WL 554834, Case No. CV 03-3080 DT (RCx), *2-3 (C.D.Cal.2004). Those courts have relied in part on the degree of discovery, including, for example, whether discovery as to class issues had been completed and whether discovery as to the existence of a corporation-wide policy had been conducted. See Smith v. T-Mobile, 2007 WL 2385131, Case No. CV 05-5274 ABC (SSx), *4 (C.D.Cal.2007).

Defendant argues that, because the parties have engaged in class-related discovery during the more than one year since this action has been filed, see Garrison Decl. ¶¶ 4-7, the Court should proceed directly to the heightened second step in assessing whether Sarviss has met his burden to show that certification is proper. In particular, GDIT notes that Sarviss did not seek to take depositions prior to the filing of his collective action certification motion, thousands of documents were produced through discovery, and no motions to compel were filed. Id. Sarviss notes that GDIT refused to produce much of the information it now claims is lacking from Plaintiffs motion, see Harris Decl. in Supp. of Reply, ¶ 3 & Ex. 2, and contends that GDIT should not be allowed to benefit from its refusal to provide such information, Pl.’s Reply Coll. Action at 3-4.

The Court will apply the two-tiered approach here, with some hesitation and with some modification. Although the lengthy time period for class discovery has closed, the Court generally will not allow a party to refuse discovery of certain issues and then use his opponent’s lack of information on those particular issues as a central basis for proceeding with these issues. Nevertheless, two issues provide the Court some pause. First, this is not a case where a plaintiff seeks certification within the first few months—or even within the first year—after a case has been filed