Opinion
08 Civ. 2400 (CM) (DCF).
March 26, 2010
INTRODUCTION
Plaintiffs Andrew Clarke ("Clarke") and Tapas Sarkar ("Sarkar") bring this putative collective action against defendant JPMorgan Chase Bank, N.A. ("JPM" or "Defendant"), asserting claims individually and on behalf of hundreds of similarly situated current and former JPM information technology ("IT") employees, under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), Article 19 of the New York Labor Law ("NYLL") and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq. ("NJWHL"). Plaintiffs allege that JPM violated the overtime pay requirements of the FLSA, NYLL and NJWHL by failing to compensate them for hours worked in excess of forty per week.
Three motions are pending before the Court: (1) JPM's motion for summary judgment on the claims of Plaintiff Clarke (the "Clarke Summary Judgment Motion"); (2) JPM's motion for summary judgment on the claims of Plaintiff Sarkar (the "Sarkar Summary Judgment Motion"); and (3) Plaintiffs' motion for conditional collective action certification. For the reasons set forth below, the Court grants JPM's summary judgment motions. Plaintiffs' collective action certification motion is therefore denied as moot.
BACKGROUND
I. The Claims Asserted and the Putative Classes
Plaintiffs filed their complaint (the "Complaint") on March 7, 2008. The Complaint asserts three causes of action.
Count I is the FLSA claim, brought by both Plaintiffs individually, and as a putative collective action pursuant to 29 U.S.C. § 216(b) on behalf of current and former JPM IT employees who were allegedly misclassified by JPM as exempt from the FLSA's overtime requirements, and later reclassified as nonexempt — i.e., overtime eligible. (See Compl. ¶¶ 23-25, 39-46.) Count II is the NJWHL claim, brought by Plaintiff Clarke individually and as a putative class action pursuant to Federal Rule of Civil Procedure 23 on behalf of similarly situated current and former IT employees who worked in New Jersey (the "New Jersey Class"). (See id. ¶¶ 27-28, 47-53.) Count III is the NYLL claim, brought by Plaintiff Sarkar individually and as a putative Rule 23 class action on behalf of similarly situated current and former IT employees who worked in New York (the "New York Class"). (See id. ¶¶ 29-30, 54-60.)
Plaintiffs seek, inter alia, damages in the amount of their unpaid overtime wages, an award of liquidated damages pursuant to § 216(b), attorneys' fees and expenses.
II. The Pending Motions
JPM argues that it is entitled to summary judgment on Clarke's claims because they are time-barred, and that even if his claims are timely, Clarke was exempt from FLSA overtime coverage. (Def.'s Mem. in Supp. of Summ. J. Mot. to Dismiss Claims of P1. Clarke, Apr. 14, 2009, at 1-2.) JPM argues that it is entitled to summary judgment on Sarkar's claims because he was exempt from FLSA and NYLL overtime provisions under several different exemptions, including the computer employee exemption. (Def.'s Mem. in Supp. of Summ. J. Mot. to Dismiss Claims of Pl. Sarkar, Apr. 14, 2009 ("Def.'s Sarkar Mem."), at 1-2.) Sarkar opposes JPM's summary judgment motion on the merits, but also submits a Rule 56(f) affidavit, asking the Court to deny JPM's motion on Rule 56(f) grounds or, alternatively, to stay its decision and order additional discovery. (See Decl. of Adam T. Klein in Supp. of Pls.' Opp. to Def's Sarkar Summ. J. Mot., Pursuant to Fed.R.Civ.P. 56(f), May 14, 2009 ("Klein 56(f) Decl."), ¶ 27.)
For the reasons stated herein, the Court finds that Clarke's claims are time-barred and that Sarkar was exempt as a computer employee, and rejects Sarkar's Rule 56(f) application. Accordingly, the Court grants summary judgment to JPM on both Plaintiffs' claims, mooting Plaintiffs' certification motion.
III. Facts
The undisputed facts relevant to JPM's summary judgment motions are taken from the parties' Rule 56.1 statements, and from certain deposition testimony, declarations and documents.
A. JPM
JPM is a global financial services firm that provides a variety of products and services, including investment banking, mortgages, loans, retail banking, private banking and wealth management. (Def's Rule 56.1 Stmt. in Supp. of Sarkar Summ. J. Mot., Apr. 14, 2009 ("Def.'s Sarkar 56.1 Stmt."), ¶ 3.) Each of these various business units is referred to as a "line of business" or "LOB." (Id.) As a normal practice, JPM periodically reviews the exempt status of its jobs to ensure that they are classified consistent with FLSA overtime requirements. (Pls.' Resp. to Def.'s Clarke 56.1 Stmt. Pls.' Stmt. of Add'l Material Facts, June 30, 2009 ("Clarke 56.1 Cntrstmt."), ¶ 98.)
When the Court cites only Defendant's Rule 56.1 statement, that means the cited paragraph is expressly admitted in the corresponding paragraph in Plaintiffs' Rule 56.1 counterstatement; otherwise, when taking undisputed facts from the parties' Rule 56.1 statements, the Court cites paragraphs from both parties' statements or only from Plaintiffs' counterstatement.
B. Andrew Clarke
Because the Court finds that Plaintiff Clarke's claims are time-barred, the Court sets forth only those limited facts relevant to the timeliness of his claims. The Court does not get into the nature of Clarke's job duties, as it need not decide whether he was exempt from the FLSA's overtime requirements.
Andrew Clarke worked in JPM's IT department until his employment at JPM ended on June 11, 2007. (Def's Rule 56.1 Stmt. in Supp. of Clarke Summ. J. Mot., Apr. 14, 2009 ("Def.'s Clarke 56.1 Stmt."), ¶ 7; Clarke 56.1 Cntrstmt. ¶¶ 3, 7.) Prior to August 1, 2005, Clarke was classified as overtime exempt. (See Def.'s Clarke 56.1 Stmt. ¶ 2.)
It is undisputed that on August 1, 2005, Clarke was among many JPM employees who were reclassified as nonexempt. (See id.; Clarke 56.1 Cntrstmt. ¶¶ 98-101; Def.'s Resp. to Clarke 56.1 Cntrstmt., July 17, 2009, ¶¶ 98-101.) Clarke remained overtime eligible from that date until he voluntarily left JPM in June 2007. (See Clarke 56.1 Cntrstmt. ¶ 3.) Nor can it be disputed that Clarke did, in fact, receive overtime from August 2005 until he left JPM. (See id. ¶ 5; Aff. of Debra Morway in Supp. of Def.'s Clarke Summ. J. Mot., Apr. 14, 2009, Ex. A (Dep. of Andrew Clarke, Feb. 13, 2009 ("Clarke Dep.")), 44:5-46:24, 63:13-24; Pls.' Mem. in Opp. to Def.'s Clarke Summ. J. Mot., June 30, 2009 ("Clarke Opp."), at 10 n. 4.)
C. Tapas Sarkar
The Rule 56.1 statements submitted in connection with the Sarkar Summary Judgment Motion rely predominantly on Sarkar's extensive deposition testimony. Sarkar's testimony clearly shows that his job duties place him within the FLSA's computer employee exemption.
In a transparent attempt to avoid summary judgment, Sarkar submits a self-serving declaration that contradicts certain portions of his deposition, sworn to just three months after he was deposed. (See Decl. of Tapas Sarkar, May 13, 2009 ("Sarkar Decl.").) However, "it is well-settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (quoting Mack v. United States, 814 F.2d 120, 124-25 (2d Cir. 1987)); accord Cordell v. Verizon Comm'ns, Inc., 331 F. App'x 56, 58 (2d Cir. 2009) ("[F]actual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony." (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
Further, Sarkar's Rule 56.1 Counterstatement, which relies heavily on his post-deposition declaration, attempts to manufacture disputes by citing various snippets of his testimony that, if taken out of context, could be said to support his position. (See Pls.' Resp. to Def.'s Sarkar 56.1 Stmt. Pls.' Stmt. of Add'l Material Facts, May 14, 2009 ("Sarkar 56.1 Cntrstmt.").) However, the Court looks to the entirety of the Sarkar deposition testimony submitted by the parties in determining whether material facts are genuinely in dispute.
1. Sarkar's Position at JPM
Tapas Sarkar began working for JPM in December 2002. (Def.'s Sarkar 56.1 Stmt. ¶ 62; Sarkar 56.1 Cntrstmt. ¶ 62.) When he was hired, Sarkar understood that he would be paid a salary and would not be paid overtime. (Dep. of Tapas Sarkar, Feb. 11, 2009 ("Sarkar Dep."), 51:20-52:3.) Sarkar's annual compensation ranged from $78,850 in 2003 to $101,932 in 2007. (Id. 54:3-10, 55:17-22.) At all times while at JPM, Sarkar earned well more than $455 per week. (See id. 53:11-54:2.)
Pages from Sarkar's deposition transcript are attached as exhibits to various affidavits submitted in connection with the Sarkar Summary Judgment Motion. Throughout this opinion, the Court cites directly to the transcript itself.
Before being hired by JPM, Sarkar earned two technical certifications, as a Certified Novell Engineer ("CNE") and as a Microsoft Certified Systems Engineer ("MCSE"). (Sarkar 56.1 Cntrstmt. ¶ 60.) The CNE certification enabled Sarkar to "understand" Novell's Netware, a network operating system. (See Sarkar Dep. 22:25-23:16.) To obtain his CNE, Sarkar attended a ten-month course, during which he had to pass approximately seven exams. (Id. 22:6-21, 23:25-24:13.) According to Novell's website, the CNE "has been recognized as the IT industry's leading certification for advanced networking and troubleshooting," and teaches its holder to "solve advanced company-wide support problems and high-level network problems." (See Aff. of Debra Morway in Supp. of Def.'s Sarkar Summ. J. Mot., Apr. 14, 2009 (Morway Sarkar Aff."), Ex. A-1.)
Sarkar is a member of JPM's Global Technology Infrastructure ("GTI"), which has at times been called Enterprise Technology Services ("ETS"). (See Def.'s Sarkar 56.1 Stmt. ¶ 5; Sarkar 56.1 Cntrstmt. ¶ 5.) GTI is part of JPM's IT department, and manages the file and print aspects of JPM's global computer network; GTI serves all of JPM's various LOBs. (See Sarkar Dep. 58:24-60:14, 62:9-14.)
From the time he was hired until July 1, 2005, Sarkar worked as a Senior Technology Officer. (Morway Sarkar Aff. Ex. B (JPM Job Profile for Tapas Sarkar).) Sarkar then held the title of Distributed Computing Engineer II until May 1, 2007, when he became a Technology Operations Analyst. (Id.) Each of those positions was classified as overtime exempt. (Sarkar Decl. ¶ 2.) On January 1, 2008, Sarkar was one of hundreds of JPM employees reclassified as overtime eligible. (See id.; Decl. of Courtney Smith Goodrich, May 13, 2009 ("Goodrich Decl."), ¶ 4.) On February 1, 2008, Sarkar was promoted to Vice President, which is an exempt position. (Sarkar Decl. ¶ 2.) During this period, from 2003 to 2008, the nature of Sarkar's primary job duties remained essentially the same. (Id. ¶¶ 3-4; Sarkar Dep. 253:2-10.)
2. Sarkar's Job Duties
The bulk of Sarkar's work at JPM has been on the computer; since at least 2005, "[a]lmost 100 percent" of his work has been on the computer. (Sarkar Dep. 69:10-70:24.) In 2007 and 2008, Sarkar worked on a Novell Services Group ("NSG") "SWAT Team" led by Jodi Shinney. (See Morway Sarkar Aff. Ex. D (Dep. of Jodi Shinney, Feb. 26, 2009 ("Shinney Dep.")), 35:2-22.) The SWAT Team had eight members, each of whom had different areas of expertise. (See id.) Sarkar worked to support the operation of JPM's Novell network with respect to file and print functionality and storage capacity. (See id.; Sarkar Dep. 61:11-62:14.) During his time at JPM, Sarkar's job duties have included: capacity management; Novell Distributed Print Services ("NDPS") remediation; resolution of escalated server-related issues; special projects; and the creation and updating of technical manuals.
i. Capacity Management
Sarkar spent the majority of his time on capacity management. (Sarkar 56.1 Cntrstmt. ¶ 76; Sarkar Dep. 163:20-22.) Capacity management refers to Sarkar's ensuring that users within his area of responsibility had sufficient capacity on Novell servers to store their electronic data. (Sarkar Dep. 78:6-10.)
A server is a shared device that routes information and acts as a communicator between different technologies on a network, enabling data, printers and applications to be shared across computers. (Morway Sarkar Aff. Ex. C (Decl. of Jodi Shinney, Mar. 30, 2009 ("Shinney Decl.")), ¶ 4.)
Sarkar was responsible for capacity management in JPM's Northeast region, which includes the New York City area and Delaware. (Sarkar Dep. 73:14-17, 74:9-17.) Sarkar supported multiple LOBs within the Northeast region, but mainly JPM's Investment Bank (id. 78:11-23), which accounted for over $12 billion of JPM's revenue in 2008 (Morway Sarkar Aff. Ex. F (Decl. of Una Miller, Mar. 31, 2009)), ¶ 2). Sarkar was responsible for about fifty to sixty physical servers and 1,500 virtual servers, affecting more than 10,000 users. (Sarkar Dep. 76:13-77:17.) In connection with his capacity management work, Sarkar has identified the need to add data servers to JPM's infrastructure. (Def.'s Sarkar 56.1 Stmt. ¶ 66; Sarkar 56.1 Cntrstmt. ¶ 66.) If Sarkar did not do his job correctly, data would be lost, potentially causing financial loss to JPM. (See Def.'s Sarkar 56.1 Stmt. ¶ 9; Sarkar 56.1 Cntrstmt. ¶ 9.) Sarkar testified that he has "excellent" "[c]omputer skill[s] for storage-related work." (See Sarkar Dep. 203:25-204:17.) Many people at JPM considered Sarkar "the `go-to' person for capacity management in the Northeast region." (Sarkar Decl. ¶ 27.)
A standalone server that individually houses resources is a "physical server." (See Morway Sarkar Aff. Ex. C (Shinney Decl.), ¶ 4.) When physical servers exist in a cluster, however, they work together so that if one server goes down, the resources on the failed server migrate to the other, working servers in the cluster, which is called a "virtual server." (Id.) Servers are clustered so that all of the resources necessary to run a large computer network can be provided. (Id.)
An important aspect of Sarkar's capacity management responsibilities was "put[ting] plans together to . . . remediate a lot of situations in the disk space area." (Sarkar Dep. 242:11-15.) In a performance review, Sarkar's manager stated that "[Sarkar] has engineered improvements in a number of space shortage situations." (See Sarkar Dep. 242:2-25.) When creating a plan for disk space remediation, Sarkar considers the following factors: the space available on the current frame, the clusters that the frame was connected to, future frame growth, frame decommission, Symmetrix Remote Data Facility ("SRDF") needs, and the viability of moving between frames. (Def.'s 56.1 Stmt. ¶¶ 72-73.)
When Novell servers appear in a cluster, an EMC frame houses storage on physical disks, and the frame is attached by cables to the cluster of servers. (See Morway Sarkar Aff. Ex. C (Shinney Decl.), ¶ 4.) Chunks of storage from the EMC frame, called "volumes," are assigned to the server clusters. (Id.) These volumes, which are often referred to as virtual servers, house data for JPM's LOBs and are allocated based on the needs of the business. (Id.)
SRDF is a data replication mechanism between two EMC frames that ensures changes in data are replicated to a disaster recovery copy of the data nearly instantaneously. (Morway Sarkar Aff. Ex. D (Shinney Dep.), 190:19-24.)
For example, it is undisputed that in October 2007, Sarkar devised a disk space remediation plan for JPM data centers in New York City and Brooklyn. (Def.'s Sarkar 56.1 Stmt. ¶ 16; Sarkar 56.1 Cntrstmt. ¶ 16.) Sarkar attached the draft plan (contained in a series of spreadsheets) to an email dated October 10, 2007, which he sent to several JPM employees, including Jodi Shinney. (See Morway Sarkar Aff. Ex. A-6.) Sarkar's email states that implementing the plan, which he "put together to achieve some disk space remediation goals by the end of this year," was "not going to be straight forward and easy." (Id.) Sarkar then listed numerous technical issues relating to the plan that he anticipated encountering and/or that needed to be considered. (Id.; Sarkar Dep. 117:14-24.)
It is also undisputed that Sarkar developed remediation plans for JPM's LOBs. (Def.'s Sarkar 56.1 Stmt. ¶ 69; Sarkar 56.1 Cntrstmt. ¶ 69.) In response to an LOB's request for additional capacity, Sarkar would design a plan to meet its needs. (Sarkar Dep. 214:22-216:2.) In developing the plan, Sarkar would consult with the LOB — the client — about the LOB's requirements, and about the impact that implementing the plan would have on its business. (Id. 306:9-309:5.) Sarkar provided this sort of "impact analysis" to LOBs on a regular basis. (See id. 308:9-309:5.)
The capacity remediation plans provided to LOBs often involved data migration — i.e., moving data among volumes and server frames. (See id. 92:6-12 (explaining that another option for increasing storage capacity is to allocate more hardware resources to the user community).) Data can be migrated in several different ways, which have various benefits and risks. (See id. 94:4-97:8.) In connection with data migrations, Sarker would discuss numerous technical issues with a liaison at the LOB client, including: the number of login scripts at issue; the complexity of the migration; whether there are any hard-coded databases; the number of users that may be impacted by the migration; and the future capacity needs of the LOB. (Def.'s Sarkar 56.1 Stmt. ¶ 71; Sarkar 56.1 Cntrstmt. ¶ 71; Sarkar Dep. 97:21-98:10.)
ii. NDPS Remediation
Novell Distributed Print Services ("NDPS") is a component of the Novell network operating system that enables users to print to certain printers. Sarkar was responsible for NDPS printing for the Northeast region, and estimates that he spent about ten percent of his time on NDPS remediation. (Sarkar Dep. 163:23-164:2, 195:13-18.) Sarkar was considered a subject matter expert ("SME") in NDPS printing. (Def.'s Sarkar 56.1 Stmt. ¶ 39; Sarkar 56.1 Cntrstmt. ¶ 39.) Indeed, Sarkar's team members called him the NDPS "guru." (Def.'s Sarkar 56.1 Stmt. ¶ 59; Sarkar 56.1 Cntrstmt. ¶ 59.) Sarkar testified that he agreed with this assessment of his skills. (Sarkar Dep. 371:3-5.) Other members of Sarkar's team were considered SMEs in their particular areas of expertise. (Sarkar Decl. ¶ 15.)
As part of his NDPS remediation work, Sarkar has drafted detailed plans regarding whether certain printers at JPM sites around the country could be moved off data servers onto EDG servers, or "boxes." (See Sarkar Dep. 218:19-222:2; Morway Sarkar Aff. Ex. D (Shinney Dep.), 157:8-24.) An EDG box is a dedicated server that directs printers. (Morway Sarkar Aff. Ex. D (Shinney Dep.), 157:8-17.) Printer agents can be migrated from data servers to EDG servers in different ways, and Sarkar would suggest an approach to accomplish a particular migration. (See Sarkar Dep. 279:19-281:18.)
To develop these plans, Sarkar would analyze the printing infrastructure at a given site, determine whether it was causing problems, and then make a recommendation — to the LOB and to his manager — about what should be done. (See id. 218:19-222:2.) For example, Sarkar testified that he "did some work for Rochester," which had three servers and a user community of about 1,200 to 2,000, and was "having [a] problem with slowness." (Id. 220:16-21.) Sarkar "looked at that site" and, based on the size of its user community, recommended adding two servers. (Id. 220:22-221:14.) The LOB accepted Sarkar's suggestion, and two additional servers were implemented for that site. (Id. 221:6-14.)
In addition to responding to NDPS concerns at particular locations, Sarkar proactively developed plans to alleviate NDPS issues throughout the country. (See id. 221:15-23.) Sarkar "identif[ied] locations where NDPS should be moved to add servers," "establish[ed] plans to remove inactive printers from strategic trees" and transmitted ideas to the desktop team to create a "more healthy printing environment." (Id. 221:24-223:11.)
iii. Escalation Work
Sarkar spent about seven or eight percent of his time responding to incidents that had been escalated to his attention. (See Sarkar Dep. 163:3-13.) An incident "ticket" is an electronic form that is filled out when a user or multiple users are having computer problems. (Id. 193:4-7.) An incident ticket typically originates with JPM's helpdesk, which attempts to resolve the issue. (Id. 193:10-194:4.) It is undisputed that Sarkar never worked on the helpdesk. (Def.'s Sarkar 56.1 Stmt. ¶ 65.)
If the helpdesk cannot resolve the issue, it determines where to send the ticket, depending on the nature of the problem. (Sarkar Dep. 194:5-10.) Often, the helpdesk would escalate the issue to desktop support. (See id. 194:11-15.) If desktop support could not resolve the problem, it would be escalated to Sarkar's team within the NSG group. (Id. 194:16-19.) Sarkar admitted that his team was thus referred to as "third level support." (See id. 194:20-24.) Further, when a ticket was assigned to another member of Sarkar's team and he or she could not solve the problem, it was sometimes escalated to Sarkar. (Id. 194:25-195:16.) Tickets that were escalated from other team members to Sarkar typically concerned disk space remediation or NDPS printing. (Id. 195:7-11.) Thus, Sarkar effectively functioned as a fourth point of escalation for certain types of incidents.
Incident tickets are classified according to the severity of the situation, ranging from Priority 1 ("Pl") to P3. (Id. 123:24-124:13.) A P1 incident is the most serious. (Id. 124:11-13.) For example, an incident is designated P1 if it involves "a business, technical, or facility outage where service must be restored within the specified time to repair or deadlines will be missed," an issue that "results in non-compliance with Federal regulation," or one that "is causing cross-regional impact." (Morway Sarkar Aff. Ex. A-30 (JPM Priority and Severity Guidelines).) There are multiple levels of P1 incidents, categorized based on the number of users affected and the amount of potential financial loss. (Id.)
It is undisputed that Sarkar regularly resolved P1 issues during his employment at JPM. (Def.'s Sarkar 56.1 Stmt. ¶ 20; Sarkar Dep. 226:2-21.) Indeed, Sarkar testified that he has "always been in the forefront of all critical issues in the Northeast region mostly in Atlas and in some cases in [the] Heritage [Novell network] environment." (Sarkar Dep. 161:9-17.) Sarkar explained that by "critical," he meant "P1, P2 situations." (Id. 161:18-21.) Sarkar also testified that his colleagues and clients sought him out when they needed help with difficult problems. (Id. 172:19-173:4.) While at JPM, Sarkar resolved issues that could have resulted in millions of dollars of losses for the business. (Def.'s Sarkar 56.1 Stmt. ¶ 10.)
When Sarkar tackled escalated incident tickets, and when he dealt with capacity management, NDPS remediation and other issues, he would find the "root cause" of a problem and then figure out how to address it. (Sarkar Dep. 227:20-228:21.) Whenever possible, Sarkar tried to devise a solution that would prevent the issue from recurring. (Id. 229:3-10.) In performing his various duties, Sarkar encountered issues for which there was no documentation, no known solution. (Id. 424:14-18.) Sarkar testified that he was "creative" in performing his duties at JPM. (Def.'s Sarkar 56.1 Stmt. ¶ 54; Sarkar 56.1 Cntrstmt. ¶ 54.) Sarkar applied knowledge obtained from the engineering department, other team members, documentation and classes, as well as his own knowledge, skills and decision-making. (See id. 170:17-172:7, 424:14-425:3.)
In addition, it is undisputed that Sarkar proactively identified issues, thereby preventing potential Pl and P2 situations. (Def.'s Sarkar 56.1 Stmt. ¶ 33; Sarkar Dep. 175:7-24.) He has also identified areas for improvement in authentication performance and directory communications. (Def.'s Sarkar 56.1 Stmt. ¶ 30.) For example, when his team was "getting a lot of P1 tickets based on new workstation builds, and users [were] not able to log on to the network" at certain buildings, he determined that they "were not communicating to the nearest server" as a result of "authentication errors" in the site codes. (See Sarkar Dep. 139:21-140:10, 141:5-142:23.) Sarkar recommended a change to the specification that would route users to the nearest servers; it was accepted, and engineering corrected the site codes. (Id. 141:5-142:23.)
iv. Special Projects
One of Sarkar's job duties was to work on "special projects" as they arose. (Def.'s Sarkar 56.1 Stmt. ¶ 11; Sarkar 56.1 Cntrstmt. ¶ 11; Sarkar Dep. 72:15-73:2, 165:17-21.) In 2006 and 2007, Sarkar spent about ten to twelve percent of his time on special projects, including the hardware or server refresh project, which involved the upgrade of Netware servers. (Sarkar Dep. 165:13-21, 231:3-10.) Sarkar identified servers most in need of refresh and determined the priority for their refresh by analyzing the age of the equipment, the criticality to the users and the load that the servers would be under. (Morway Sarkar Aff. Ex. D (Shinney Dep.), 166:3-10.)
Sarkar was also involved in the backup migration project, an effort to ensure that all data is sufficiently backed up, so that it would be available if lost from its primary server. (Morway Sarkar Aff. Ex. C (Shinney Decl.), ¶ 7.) As part of the project, JPM upgraded to a different version of NetBackup software — the product that JPM used to back up data in the Northeast region. (Morway Sarkar Aff. Ex. D (Shinney Dep.), 80:3-8.) Sarkar tested the new version of the software and, in doing so, identified storage issues with the new software that the storage team fixed. (See id. 80:19-81:7.)
v. Manuals
In 2007, Sarkar drafted a troubleshooting guide for JPM's desktop support team, titled the NDPS Support Troubleshooting Guide for Desktop Support Team. (Sarkar Dep. 348:23-349:6; Morway Sarkar Aff. Ex. A-25.) Sarkar's purpose in creating the documentation was to enable the desktop support team to resolve relatively straightforward NDPS issues so that they would only escalate more complicated issues — specifically, NDPS issues involving the server, since the desktop support team, unlike Sarkar's team, did not have access to the server. (See Sarkar Dep. 127:2-129:23.) In deciding what to include in the troubleshooting guide, Sarkar relied on materials from the engineering department, as well as his own training, knowledge and experience. (See id. 127:11-25, 352:14-25.)
It is undisputed that Sarkar also edited and updated another manual, called the NDPS Support Troubleshooting Guide for Server Support Team, and that he is currently listed as the author of that manual. (Def.'s Sarkar 56.1 Stmt. ¶ 27; Sarkar 56.1 Cntrstmt. ¶ 27; Morway Sarkar Aff. Ex. A-26.) The purpose of this document was to guide the server support team in resolving NDPS issues without having to escalate them to Sarkar. (See Sarkar Dep. 349:20-350:3, 353:15-23.)
DISCUSSION
I. Standard of Review
A party is entitled to summary judgment when there is "no genuine issue as to any material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). On a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once such a showing has been made, the nonmoving party must present "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment." Anderson, 477 U.S. at 248.
To withstand a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Instead, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmoving party. Summary judgment is designed to flush out those cases that are predestined to result in directed verdict. Lightfoot v. Union Carbide Corp., 110 F. 3d 898, 907 (2d Cir. 1997).
II. The Clarke Summary Judgment Motion
The statute of limitations for an FLSA overtime claim is two years, except that the limitations period is three years for a claim arising out of a "willful" violation. 29 U.S.C. § 255(a). The statute of limitations for an overtime claim under the NJWHL is also two years, with no exception for willful violations. See N.J.S.A. § 34:11-56a25.1; Genarie v. PRD Mgmt., Inc., No. 04 Civ. 2082, 2006 U.S. Dist. LEXIS 9705, at *61 (D.N.J. Feb. 17, 2006). A cause of action accrues at "each payday following an allegedly unlawful pay period." Lee v. ABC Carpet Home, 236 F.R.D. 193, 199 (S.D.N.Y. 2006).
It is undisputed that Clarke was reclassified as overtime eligible and began receiving overtime in August 2005, and continued receiving overtime through the end of his employment at JPM. The Complaint in this case was not filed until March 7, 2008, more than two years after Clarke began receiving overtime.
Plaintiffs "concede that Clarke's individual New Jersey overtime claims are time-barred, because he did not file this action within New Jersey's two-year statute of limitations." (Clarke Opp. at 10 n. 4.) Clarke also effectively concedes that his FLSA claim is likewise time-barred unless the three-year statute of limitations for "willful" violations applies — he argues only that his FLSA claim is "timely for the period from March 7, 2005 (three years before filing the complaint) through the time he was reclassified in August 2005." (Id. at 10.) For the reasons set forth below, Clarke fails to raise any genuine issue about whether JPM's alleged FLSA violations were willful; thus, the ordinary two-year period applies, and Clarke's FLSA claim is time-barred.
In an attempt to somehow assert a timely claim, Clarke also argues — for the very first time — that he has an overtime claim under New York law, which provides for a six-year statute of limitations. That argument is improper and rejected.
A. Clarke's FLSA Claim Is Time-Barred
An employer willfully violates the FLSA only if it "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). "Reckless disregard . . . involves actual knowledge of a legal requirement, and deliberate disregard of the risk that one is in violation." Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2005 U.S. Dist. LEXIS 9768, at *7 n. 2 (S.D.N.Y. May 20, 2005) (Lynch, J.). A willful violation requires more than mere negligence. See id. ("[P]laintiffs must prove more than that defendant `should have known' it was violating the law."); El v. Potter, No. 01 Civ. 6125, 2004 U.S. Dist. LEXIS 24447, at *15 (S.D.N.Y. Dec. 13, 2004) ("Willfulness cannot be found where the employer acted negligently or assumed in good faith, but incorrectly, that its conduct complied with the FLSA."). Further, an employer does not willfully violate the FLSA even if it acted "unreasonably, but not recklessly, in determining its legal obligation." McLaughlin, 486 U.S. at 135 n. 13; accord Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995). The employee bears the burden of proving willfulness. Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009); Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999).
In determining the meaning of the word "willful" in the FLSA statute of limitations, the McLaughlin Court looked to legislative history. The Court noted that in 1965, the Secretary of Labor had proposed expanding the coverage of the FLSA by replacing the two-year statute of limitations with a three-year period. McLaughlin, 486 U.S. at 132. Congress did not adopt that proposal; instead, in 1966, Congress enacted "the 3-year exception for willful violations." Id. The Supreme Court concluded that, "The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations." Id.
Proof of willfulness requires a "factual showing" of an employer's knowing or reckless violation of the FLSA. See Saunders v. City of N.Y., 594 F. Supp. 2d 346, 358 (S.D.N.Y. 2008). An FLSA plaintiff seeking to invoke the three-year limitations period cannot survive a motion for summary judgment unless he "make[s] a competent demonstration that there [is a] trialworthy issue as to whether [the employer] `either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" See Lopez v. Corporacion Azucarera de P.R., 938 F.2d 1510, 1515-16 (1st Cir. 1991) (quoting McLaughlin, 486 U.S. at 133).
For example, in Gustafson v. Bell Atlantic Corp., 171 F. Supp. 2d 311 (S.D.N.Y. 2001), the plaintiff-employee alleged that Bell Atlantic had "intentionally misclassified him as an independent contractor instead of an employee in order to deny him overtime pay." Id. at 316. Defendants moved for summary judgment on the FLSA claims that had accrued more than two years before the complaint was filed; plaintiff countered that the three-year statute of limitations should apply. See id. at 318, 322-23. Judge Conner concluded that "plaintiff [did] not offer sufficient evidence to carry his burden of proving a willful or reckless violation of the FLSA." Id. at 323. Plaintiff "only speculate[d] that [Bell Atlantic] willfully attempted to conceal plaintiff's eligibility for overtime pay," but there was "nothing in the record to support this allegation." Id. "Similarly, plaintiff offered no credible evidence to support his argument that defendants were reckless in failing to determine whether plaintiff was eligible for overtime pay under the FLSA."Id. at 323-24. Judge Conner held that "[p]laintiff's FLSA claim is therefore governed by the two-year statute of limitations," and granted defendants' motion. See id. at 324.
In Yourman v. Dinkins, 865 F. Supp. 154 (S.D.N.Y. 1994), plaintiffs alleged that their New York City agency employers had willfully denied them overtime, when plaintiffs clearly did not qualify as salaried employees and thus were overtime eligible.See id. at 156-58. In determining whether to apply the three-year limitations period to plaintiffs' claims, Judge Preska held that, "To carry their burden of proof on the issue of knowledge, plaintiffs must show that defendants maintained their time and leave policies with full awareness that doing so rendered the classification of plaintiffs as FLSA-exempt improper." Id. at 159.
The Yourman plaintiffs argued that defendants must have been aware of their noncompliance because their policies were "so plainly inconsistent with regulatory requirements for salaried status." Id. However, even if the unlawfulness of defendants' policies was "obvious, that alone is not sufficient to establish defendants' willfulness." Id. at 160. The fact that defendants "lacked a reasonable basis" to believe that their policies complied with the FLSA "will not support a finding [of] willful[ness]." Id. Judge Preska acknowledged that defendants had acted negligently and even unreasonably; but, "in the absence of any evidence that defendants actually perceived the illegality of maintaining their . . . policies," the violations stemming from those policies could not be labeled as willful. Id. Thus, the two-year statute of limitations governed plaintiffs' claims. Id. at 166;see, e.g., Bowrin v. Catholic Guardian Soc'y, 417 F. Supp. 2d 449, 476 (S.D.N.Y. 2006) (finding that "[defendant's] violations of the overtime provisions of the FLSA do not rise to the level of willfulness," as "Plaintiffs have not presented evidence that [defendant] knew it was violating the FLSA," and defendant had at least "ma[d]e some effort to ascertain whether it was entitled to an exemption"); Potter, 2004 U.S. Dist. LEXIS 24447, at *40 (holding that "the two year statute of limitations is applicable to Plaintiffs' FLSA claims" because "[n]o genuine issue of material fact exist[ed] as to whether the defendant's conduct was willful").
Here, Plaintiff Clarke has not raised any genuine issue about whether JPM's alleged noncompliance with the FLSA was willful. Indeed, Clarke references only one fact in support of his contention that the three-year limitations period should apply: his reclassification in 2005 as overtime eligible.
It is undisputed that, as a normal practice, JPM periodically reviews the exempt status of its employees to ensure they are classified consistent with FLSA requirements. In summer 2005, after a firm-wide examination of its employees' exemption status, JPM reclassified several different job titles as overtime eligible. Clarke was one of the employees reclassified.
None of the documents cited by Clarke in connection with the reclassification suggests that JPM's failure to pay him overtime before August 2005 was a willful violation of the FLSA. (See Decl. of Adam T. Klein in Supp. of Pls.' Opp. to Def.'s Clarke Summ. J. Mot., June 30, 2009 ("Klein Clarke Decl."), Exs. A-C, F.) To the contrary, the internal JPM emails and memoranda cited by Clarke suggest that the reclassification was a good-faith effort to ensure that its classification of IT employees complied with the FLSA — and that the reclassification was likely a conservative measure adopted at a time when FLSA collective action overtime lawsuits were becoming more and more common. Simply put, even viewed in the light most favorable to Clarke, the reclassification is not evidence that JPM's alleged violation of the FLSA was knowing or reckless. In fact, the documents do not even give rise to the inference that JPM acted negligently or unreasonably, and neither negligence nor unreasonableness constitutes willfulness for FLSA purposes. See McLaughlin, 486 U.S. at 135.
There is little case law touching upon whether an employer's reclassification of an employee can constitute evidence of willfulness. This is likely because the argument is rarely advanced. After all, FLSA collective action overtime suits are often prompted by a reclassification; if the mere fact of a reclassification were enough to trigger the exceptional three-year limitations period, it would cease to be an exception. That is clearly not what Congress intended when it passed the two-tiered statute of limitations in 1966. See id. at 132.
In one relevant decision from the Eastern District of Louisiana, the court held that "defendant's reclassification of plaintiff as an hourly employee and its payment of back overtime pay after [a] Department of Labor audit is not evidence that defendant willfully violated the FLSA." Gettridge v. Civic Ctr. Site Dev. Co., LLC, No. 01 Civ. 2434, 2002 U.S. Dist. LEXIS 2426, at *8 (E.D. La. Jan. 29, 2002). Here, JPM's reclassification of Clarke as overtime eligible similarly does not constitute evidence that JPM willfully violated the FLSA by classifying him as exempt in the first place.
Clarke presents no other evidence in support of his contention that the three-year limitations period should apply. Other than the four reclassification-related paragraphs in his thirty-five paragraph Rule 56.1 Statement of Additional Material Facts, not a single paragraph is directed to the issue of willfulness. Moreover, even the four paragraphs related to the reclassification are plainly intended to show that the reclassification is evidence that Clarke was, in fact, overtime eligible — not that JPM's conduct prior to reclassification was willful, in that it knowingly or recklessly was misclassifying him. Instead, Clarke's Rule 56.1 Counterstatement and his brief are devoted almost entirely to showing that Clarke's job duties place him outside the scope of the potentially applicable FLSA exemptions. But without a timely claim, that is all for nought.
Clarke cites two cases in support of his assertion that JPM's alleged FLSA violations were willful. Neither case is at all analogous to this one.
In Yang v. ABCL Corp., 427 F. Supp. 2d 327 (S.D.N.Y. 2005), the defendant, the owner of a jewelry store, "repeatedly stated that he knew that he was required to pay the overtime premium for all hours worked in excess of 40 per week." Id. at 331, 337. Yet, "Despite [defendant's] knowledge of the law's requirement that employees be paid an overtime premium," he refused to pay overtime to plaintiff, who worked weekends and extended hours nearly every day of the week. Id. at 336-37. Judge Sand found that "Such conduct defines a willful violation," and applied the three-year statute of limitations. Id. at 338.
The other case cited by Clarke, Chao v. Vidtape, Inc., 196 F. Supp. 2d. 281 (E.D.N.Y. 2002), was an enforcement action brought by the Department of Labor ("DOL") against two related Long Island videotape companies and the three family members who ran them. See id. at 284. The defendants "admitted that they had knowledge of the minimum wage and overtime laws," and one of the defendants had held "a meeting and told his employees to lie [to DOL investigators] about their wages and hours worked." Id. at 295. Not surprisingly, the court concluded that defendants had willfully violated the FLSA.
Here, in stark contrast to Yang and Chao, the merits of Plaintiffs' FLSA claims turn on whether the nature of the specific job duties of certain employees in JPM's IT department render them overtime exempt. This is not a case, unlike Yang andChao, where a small business owner is fully aware that he is required to pay overtime to his obviously eligible employees, and simply refuses to do so.
More generally, both Yang and Chao — like other cases in this Circuit that have found willfulness, or at least a triable issue as to willfulness — demonstrate only that Clarke might have been able to invoke the three-year statute of limitations if he had presented evidence of similarly culpable conduct by JPM. See, e.g., Young, 586 F.3d at 203-04, 207-08 (affirming district court's finding of willfulness where employer had extensively analyzed the FLSA's overtime provisions and then intentionally "hir[ed] [plaintiff] into the exempt . . . position instead of the nonexempt . . . position in order to avoid paying him overtime, even though his responsibilities did not change based on the different titles"); Kaur v. Royal Arcadia Palace, Inc., 643 F. Supp. 2d 276, 294 (E.D.N.Y. 2007) (concluding that "[w]hether Defendants acted willfully in violating the FLSA [was] a question of fact for the jury" because "Plaintiffs adduced evidence that they had complained to Defendants that Plaintiffs had not received their wages").
Clarke has made no such factual showing here. He has not raised any genuine issue about whether JPM willfully violated the FLSA's overtime provisions. Thus, the two-year statute of limitations governs Clarke's FLSA claim, the claim is barred, and JPM is entitled to summary judgment. Cf. Damassia, 2005 U.S. Dist. LEXIS 9768, at *4 (noting that question of willfulness, absent genuinely disputed issues of fact, is properly decided on summary judgment).
B. Clarke's Attempt to Assert a New York Claim Fails
In a last-ditch effort to assert a timely claim, Clarke, in a footnote in his opposition brief, argues for the first time that he falls within the putative New York Class represented by Plaintiff Sarkar. (Clarke Opp. at 10 n. 4.) The Court rejects Clarke's purported New York claim on two grounds.
First, it is well established that a "party cannot contradict its own pleading with affidavits." Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers Lvbrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). "[T]he allegations in the [complaint] are `judicial admissions' by which [plaintiff is] `bound throughout the course of the proceeding.'" See id. (quoting Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528-29 (2d Cir. 1985) (holding that district court, on summary judgment motion, had "properly disregarded [plaintiff's] affidavits seeking to controvert its own pleading")); see also Soo Line R.R. v. St. Louis S.W. Rv., 125 F.3d 481, 483 (7th Cir. 1997) ("[J]udicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.").
Here, the Complaint alleges that "Clarke was employed by Defendant in New Jersey from approximately 2000 until May 2007," and names Clarke as the representative of the putative New Jersey Class. (Compl. ¶¶ 9, 27-28 (emphasis added).) Plaintiff Sarkar represents the putative New York Class, whose members must have been "employed by Defendant in the State of New York within the last six (6) years." (Id. ¶¶ 29-30 (emphasis added).) Thus, Clarke pled himself out of the New York Class. Now, in his declaration submitted in opposition to summary judgment, Clarke claims that, "From roughly July, 2003 to January, 2004, [he] worked at one of [JPM's] facilities in Long Island, New York." (Decl. of Andrew Clarke, June 30, 2009, ¶ 3.) The Court declines to consider that assertion, as it flatly contradicts what Clarke unequivocally alleged in his pleading.
Second, "Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that `it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.'" Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394, 407 (S.D.N.Y. 2000) (quoting Bonnie Co. Fashions. Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997)) (collecting cases).
Clarke does not argue that he pled a New York claim; instead, he inappropriately attempts to raise a New York claim for the first time in his brief in opposition to summary judgment. Allowing Clarke to assert a New York claim would unquestionably prejudice JPM, as it would be forced to litigate the nature of Clarke's pre-2005 job duties (as a result of the NYLL's six-year statute of limitations). Clarke's pre-2005 job responsibilities were not the subject of the fact discovery that has been closed since March 2009.
For both of the reasons stated above, the Court rejects Clarke's eleventh-hour attempt to assert a New York claim. Because his New Jersey and FLSA claims are time-barred, the Court grants JPM's motion for summary judgment on the claims of Plaintiff Clarke.
III. The Sarkar Summary Judgment Motion
Plaintiff Sarkar's claims are timely, but they fail for a different reason: Sarkar was exempt from FLSA and NYLL overtime requirements under the computer employee exemption.
A. FLSA Statutory Framework
Under the FLSA, employees must be compensated for every hour worked over forty per week "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). However, the FLSA provides that certain categories of employees are exempt from its overtime requirements. JPM argues that Sarkar falls within one or more of the following exemptions: the "administrative" employee exemption, 29 U.S.C. § 213(a)(1), the "computer" employee exemption, 29 U.S.C. § 213(a)(17), the "combination" exemption, 29 C.F.R. § 541.708 and, for 2007 only, the "highly compensated" employee exemption, 29 C.F.R. § 541.601. (See Def.'s Sarkar Mem. at 1-2, 24.)
Sarkar's NYLL claim is also subject to the FLSA exemptions in 29 U.S.C. § 213. See N.Y. Comp. Codes R. Regs. tit. 12, § 142-2.2 (expressly providing that New York's overtime requirement is "subject to the exemptions of sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938");see also Topo v. Dhir, No. 01 Civ. 10881, 2004 WL 527051, at *3 (S.D.N.Y. Mar. 16, 2004) ("There is general support for giving FLSA and the New York Labor Law consistent interpretations."). Sarkar does not dispute that if he is exempt under the FLSA's administrative or computer employee exemptions, he is also exempt from the NYLL's overtime provisions.
"Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions." Reiseck v. Universal Comm'ns of Miami. Inc., 591 F.3d 101, 104 (2d Cir. 2010) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). "The employer has the burden of proving that the employee clearly falls within the terms of the exemption." Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir. 2009).
Whether an employee is exempt from FLSA overtime coverage is a "mixed question of law and fact." Downes v. J.P. Morgan Chase Co., No. 03 Civ. 8991, 2007 U.S. Dist. LEXIS 36677, at *33 (S.D.N.Y. May 16, 2007) (Lynch, J.) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)). "The question of how the [employee] spent [his] working time . . . is a question of fact." Icicle Seafoods, 475 U.S. at 714. "The question whether [his] particular activities excluded [him] from the overtime benefits of the FLSA is a question of law. . . ." Id. Thus, "The ultimate question of a particular worker's exemption, based on factual findings as to [his] actual work activities, requires a conclusion of law." Downes, 2007 U.S. Dist. LEXIS 36677, at *33 (citing Freeman v. Nat'l Broadcasting Co., Inc., 80 F.3d 78, 82 (2d Cir. 1996)).
B. The Computer Employee Exemption
Under 29 U.S.C. § 213(a)(17), the FLSA exempts from its overtime requirements "any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty" is:
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour.29 U.S.C. § 213(a)(17).
The term "primary duty" means the employee's "principal, main, major or most important duty." 29 C.F.R. § 541.700 (defining "primary duty" for purposes of executive, administrative, professional, computer and outside sales employee exemptions). In determining an employee's primary duty, courts look to "all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole." 29 C.F.R. § 541.700. The amount of time an employee spends performing exempt work can be a "useful guide" in determining whether his primary duty consists of exempt work. Id. "[E]mployees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement." Id.
Congress has never defined numerous terms-such as "primary duty" — used in the FLSA exemptions. With respect to the "executive, administrative, or professional" exemption of § 213(a)(1), Congress has directed the Secretary of Labor to define such terms through notice-and-comment rulemaking; regulations so issued carry the force of law and warrant deference unless arbitrary, capricious, or manifestly contrary to the purpose of the statute. See 29 U.S.C. § 213(a)(1); Freeman, 80 F.3d at 82 (citing Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843-44 (1984)). However, with respect to the "computer" exemption of § 213(a)(17), the DOL itself has acknowledged some ambiguity as to its rulemaking authority — the statutory text, in contrast to that of § 213(a)(1), does not specifically provide for such rulemaking. See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,159 (Apr. 23, 2004). Here, as both parties rely in their papers on the DOL regulations interpreting the FLSA exemptions, this Court takes such regulations as instructive authority. Cf. Downes, 2007 U.S. Dist. LEXIS 36677, at *35 n. 9.
The computer employee exemption applies to a "computer systems analyst, computer programmer, software engineer, or other similarly skilled worker." 29 U.S.C. § 213(a)(17) (emphasis added). Thus, an employee's job duties, not his job title, determine whether the exemption applies. 29 C.F.R. § 541.400 ("Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of [the computer employee] exemption."); 69 Fed. Reg. at 22,160 ("Where the prescribed duties tests are met, the [computer] exemption may be applied regardless of the job title given to the particular position.").
In order to properly delineate the scope of the computer employee exemption, it is necessary to briefly consider its unique legislative and regulatory history. In 1990, Congress directed the DOL to issue regulations allowing certain computer services personnel to qualify as exempt professional employees under § 213(a)(1). See Pub.L. No. 101-583, § 2, 104 Stat. 2871 (1990); see also 69 Fed. Reg. at 22, 159-60 (describing legislative and regulatory history of computer employee exemption). In 1991, the DOL implemented that legislation in 29 C.F.R. § 541, which contains the regulations that apply the § 213(a) exemptions. See 69 Fed. Reg. at 22,159.
However, in 1996, Congress revisited the issue and created a separate statutory exemption for computer employees, § 213(a)(17). See Small Business Job Protection Act of 1996, Pub.L. No. 104-188, § 2105, 110 Stat. 1755, 1929 (codified at 29 U.S.C. § 213(a)(17)). The new exemption contained " most-but not all-of the [DOL's] regulatory language" comprising the old computer employee exemption under § 213(a)(1). See 69 Fed. Reg. at 22,159.
"[T]he exemption in Section 213(a)(17) broadened the coverage of computer services personnel from that included in the prior Section 213(a)(1) computer professional exemption and the 1991 DOL regulations in three significant ways." Bobadilla v. MDRC, No. 03 Civ. 9217, 2005 U.S. Dist. LEXIS 18140, at *19 n. 5 (S.D.N.Y. Aug. 24, 2005). Perhaps most notably, "it eliminated the requirement that the employee's work require the exercise of independent judgment and discretion." Id. It also "eliminated any reference to educational requirements," and dispensed with the requirement that the employee must "have achieved a level of proficiency in the theoretical and practical application of a body of highly specialized knowledge." Id. (internal quotations and citations omitted).
C. Sarkar Qualifies as an Exempt Computer Employee
Plaintiff Sarkar falls squarely within the computer employee exemption. As shown by the facts set forth above, supra at Background III.C, Sarkar's "primary duty" consisted of a combination of the computer functions described in subparagraphs (A), (B) and (C) of § 213(a)(17).
Before being hired by JPM, Sarkar earned two technical certifications, as a CNE and MCSE. Sarkar attended a ten-month course and passed about seven exams to obtain his CNE, which enables its holders to "solve advanced company-wide support problems and high-level network problems." (See Morway Sarkar Aff. Ex. A-1.) While at JPM, Sarkar served as a Senior Technology Officer, Distributed Computing Engineer and Technology Operations Analyst, and spent almost all of his working time on the computer.
As part of his capacity management and NDPS remediation work, which accounted for the majority of his time, Sarkar consulted with users — JPM's LOBs — to determine hardware, software or system functional specifications. Sarkar regularly consulted with LOBs about the impact that implementing a particular capacity remediation plan would have on the business. For example, in connection with data migrations, Sarkar consulted with the LOB client about numerous technical issues, including the number of login scripts at issue, whether there were any hard-coded databases, and the LOB's future capacity needs. When Sarkar drafted NDPS remediation plans regarding whether certain printers could be moved off data servers onto EDG boxes, Sarkar consulted with the LOB client about the printing infrastructure at the site in question.
As the employee responsible for capacity management in the Northeast region — about fifty to sixty physical servers and 1,500 virtual servers affecting more than 10,000 users — Sarkar analyzed computer systems based on and related to user or system specifications. For example, in developing disk space remediation plans, such as the plan he drafted for JPM's data centers in New York City and Brooklyn, Sarkar analyzed numerous factors, including the space available on the current frame, the clusters that the frame was connected to, future frame growth, frame decommission, SRDF needs and the viability of moving between frames. Sarkar has also identified the need to add data servers to JPM's infrastructure.
When P1, P2 and other "difficult" and "critical" server issues were escalated to Sarkar, he analyzed the JPM system to identify the "root cause" of the problem, and then devised a solution. In addition, Sarkar proactively identified issues in the system, thereby preventing potential P1 and P2 situations. He has also identified areas for improvement in authentication performance and directory communications.
Sarkar's job duties also included testing software and products in a live environment and then giving feedback to the engineering department. For example, as part of his work on the backup migration project, Sarkar tested new versions of the NetBackup software, and discovered storage issues.
While at JPM, Sarkar drafted documentation for JPM's desktop support personnel, which was intended to enable the desktop support team to resolve relatively straightforward problems, so that only more complicated, server-related issues would be escalated to Sarkar. Sarkar also edited and updated another manual for the server support team, and is currently listed as the author of that document.
In sum, Sarkar's testimony and the other evidence before the Court show that Sarkar spent the majority of his time at JPM performing a combination of the functions specified in § 213(a)(17). Thus, he is exempt from the FLSA's overtime requirements.
One of the very few cases in this or any other district to squarely address the FLSA's computer employee exemption,Bobadilla v. MDRC, No. 03 Civ. 9217, 2005 U.S. Dist. LEXIS 18140 (S.D.N.Y. Aug. 24, 2005), is on point. In that case, as here, plaintiff Bobadilla alleged that his former employer, defendant MDRC, had violated the FLSA by failing to pay him overtime. Id. at * 1. MDRC moved for summary judgment, arguing that Bobadilla was exempt as a computer employee under § 213(a)(17), and as an administrative employee under § 213(a)(1). Id. Judge Koeltl granted MDRC's motion, finding that, "In view of all the evidence, Bobadilla performed highly-skilled work on MDRC computer systems and is an exempt computer employee." Id. at *29.
In reaching that conclusion, Judge Koeltl considered Bobadilla's technical certification. Bobadilla "held a certificate issued by Cisco Systems . . ., which entitled him to designation as a Cisco Certified Network Associate (`CCNA')." Id. at *6. Referring to Cisco's website — just as JPM has referenced Novell's website with regard to Sarkar's CNE certification — Judge Koeltl noted that the CCNA equips its holder with "important knowledge and skills necessary to select, connect, configure, and troubleshoot the various CISCO networking devices." See id. at *7 n. 3. Thus, Bobadilla "held a valuable Cisco CCNA credential that would allow him to develop computer systems based on user specifications." Id. at *22.
Bobadilla testified that he was a member of the networking team, and that he was referred to as a "Network Administrator."See id. at *7 n. 2. As at JPM, MDRC's IT department also included lower-level helpdesk employees. See id. at * 12. Bobadilla "was paid in excess of $75,000 per year, substantially more than the approximately $43,000 typically paid to Help Desk personnel." Id. at *22. Here, Sarkar's annual compensation ranged from $78,850 to $101,932, and it is undisputed that he, like Bobadilla, was not a member of the helpdesk.
Bobadilla's duties at MDRC included, inter alia, "Network Administration in the Novell . . . environment"; the "analysis [of] existing network resources and determination [that] an underutilization existed"; and "resolving a problem with MDRC's [Virtual Private Network], which required the plaintiff to use trial and effort to mix and match various commands" and "a thorough understanding of the physical devices involved, their operating systems, and the logical protocols demanded by each."Id. at *24-27 (internal quotations and citations omitted). Bobadilla was also involved in the introduction of new backup software, as well as a server upgrade project. See id. at *27-29. Thus, in Bobadilla, as here, "plaintiff's primary duties included a combination of the duties covered in 29 U.S.C. § 213(a)(17)."Id. at *22.
Critically, Judge Koeltl rejected Bobadilla's contention "that he spent most of his time performing Help Desk functions." Id. In other words, the court rejected precisely the tactic that Sarkar has employed here — denigrating his duties to make it appear as if he primarily performed lower-level, helpdesk functions. Judge Koeltl concluded, based on Bobadilla's own testimony and pre-litigation documents (including resumes and performance evaluations), that "Bobadilla was principally of value to MDRC because he had sophisticated knowledge of computing that went beyond that of a non-exempt Help Desk employee." Id. The Court reaches the same conclusion here — Sarkar, like Bobadilla, qualifies as an exempt computer employee under § 213(a)(17).
In opposition to JPM's motion, Sarkar strains to fit his job duties within the contours of authority applicable to lower-level technology personnel. As in Bobadilla, that attempt fails.
First, Sarkar cites 29 C.F.R. § 541.401, in which the DOL states that the computer exemption
does not include employees engaged in the manufacture or repair of computer hardware and related equipment [or] whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations.
Tapas Sarkar does not "manufacture" computer equipment, and he is not a repairman. Nor is he someone whose occupation is merely "dependent upon, or facilitated by, the use of computers." Instead, as established above, he was "primarily engaged" in the skilled, computer-related functions that render him exempt under § 213(a)(17). Thus, 29 C.F.R. § 541.401 is plainly inapplicable.
Sarkar also points to four DOL opinion letters from 1999, 2001 and 2006, each of which concluded that the employee described by the seeker of the opinion would not be exempt from the FLSA's overtime requirements. The Court finds these opinion letters wholly unpersuasive.
The most recent opinion letter concerned a "Help Desk Support Specialist." See DOL Wage Hr. Op. Ltr., FLSA 2006-42, Oct. 26, 2006, at 1. It is undisputed that Sarkar did not work on JPM's helpdesk.
Similarly, the DOL opinion letter dated August 19, 1999 concerned "customer training consultants (CTCs)," who were "paid a salary of approximately $26,000 to $27,000," and whose duties consisted of training customers on computer software, modifying basic settings — for example, "toolbars" — to meet customer needs, installing, debugging and troubleshooting, testing customers' modems, and conducting customer follow-up visits to ensure customer satisfaction. See 1999 WL 1788144. This is hardly a description of Sarkar's job duties at JPM. Sarkar was responsible, inter alia, for ensuring that servers affecting more than 10,000 JPM users in the Northeast region had sufficient storage capacity, and spent much of his time developing disk space remediation plans for JPM's LOBs. He spent little of his time doing installation and when he was troubleshooting, he was analyzing critical, complex P1 and P2 issues that had been escalated by lower-level units in JPM's IT department.
The third DOL opinion letter, dated November 5, 1999, concerned an employee who "oversees other [IT] personnel; performs . . . installations, tuning [and] troubleshooting . . .; maintains assigned priorities and prepares status reports; schedules work pertaining to network problems and software upgrades; assists the User Support Manager with training and mentoring of staff; and researches and assists the User Support Manager with network problem solving." 1999 WL 33210907. Once again, this DOL opinion letter applies to lower-level, less skilled computer work than that performed by Sarkar.
The fourth DOL opinion letter, dated May 11, 2001, concluded that an employee whose primary duty "appears" to be "identify[ing] computer solutions to fit the need of a variety of local businesses," would not fall within the computer employee exemption. See 2001 WL 1558967. Thus, this opinion letter, like the other three, does not apply to an employee with Sarkar's job duties. Further, the Court notes that the May 11, 2001 opinion letter contains little analysis, is "[b]ased on . . . limited information" and was issued "to assist [the seeker of the opinion] in writing a paper for class." Id.
In short, the four DOL opinion letters cited by Sarkar are inapposite. To the extent they provide even a modicum of support for Sarkar's position, they are unpersuasive. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (holding that interpretations in opinion letters "do not warrant Chevron-style deference," and "are entitled to respect . . . but only to the extent that those interpretations have the power to persuade" (internal quotations and citation omitted)).
Finally, Sarkar points to two court of appeals decisions, Bohn v. Park City Group, Inc., 94 F.3d 1457 (10th Cir. 1996), andMartin v. Indiana Michigan Power Co., 381 F.3d 574 (6th Cir. 2004). In light of the absence of any Second Circuit authority on the scope of the computer employee exemption under § 213(a)(17), the Court feels compelled to address them.
In Bohn, the Tenth Circuit considered the old computer professional exemption under § 213(a)(1), not § 213(a)(17)'s new computer employee exemption. See 94 F.3d at 1461. As explained above, Congress broadened the scope of the exemption for computer employees when it passed § 213(a)(17). In reversing the district court's grant of summary judgment for the defendant-employer, the Bohn court expressly found factual issues concerning the level of plaintiff's education, "whether plaintiff's primary duty required theoretical and practical application of highly specialized knowledge" and whether his "work involve[d] consistent exercise of discretion and judgment."See id. at 1462-64 (internal quotations and citation omitted). Section 213(a)(17) eliminated all three of those requirements from the computer employee exemption. See Bobadilla, 2005 U.S. Dist. LEXIS 18140, at *19 n. 5. Further, the Bohn plaintiff was a "technical writer" who earned $47,000, Bohn, 94 F.3d at 1460; regardless of whether he would fall within the scope of § 213(a)(17)'s computer exemption, his job duties were not analogous to those of Sarkar. Thus, Bohn is inapposite on multiple levels.
Martin, too, was decided under the narrower computer professional exemption of § 213(a)(1). See 381 F.3d at 579. In any event, the plaintiff in Martin, unlike Sarkar, performed classic helpdesk functions — his primary duties consisted of "respond[ing] to . . . help desk tickets," "install[ing] software, such as Microsoft's Office 97, on individual workstations," "troubleshoot[ing] Windows 95 problems," "configuring desktops, checking cables [and] replacing parts."See id. at 577, 580; see also Bobadilla, 2005 U.S. Dist. LEXIS 18140, at *30 n. 8 (distinguishing the Martin plaintiff's duties as "closer to those of a Help Desk employee . . . rather than to Bobadilla's duties as a Network Administrator"). Thus, Martin, like Bohn, has no application here.
In the end, Sarkar's own testimony and the pre-litigation documents before the Court clearly establish that he falls within § 213(a)(17)'s computer employee exemption. Indeed, if Tapas Sarkar — who, by his own admission, was the NDPS "guru" and "the `go-to' person for capacity management in the Northeast region" — does not qualify as a JPM computer employee, it is difficult to imagine who, other than, perhaps, a computer programmer, would.
D. Sarkar Cannot Rely on His Reclassification
Sarkar argues that by reclassifying him as overtime eligible in 2008, JPM "has admitted that Mr. Sarkar was not exempt from overtime." (Pls.' Mem. in Opp. to Def.'s Sarkar Summ. J. Mot., May 14, 2009, at 10.) That argument fails.
It is undisputed that in January 2008, JPM reclassified more than 635 technology employees — including Sarkar — holding a wide array of job titles. (Goodrich Decl. ¶ 4.) JPM states that, "in an environment in which its competitors and other employers saw an ever increasing number of class and collective action overtime lawsuits," it was "act[ing] conservatively by treating employees who were exempt from overtime under the law as eligible for overtime." (Def.'s Reply Br. in Supp. of Sarkar Summ. J. Mot., June 1, 2009, at 2 (internal citation omitted).) Pursuant to DOL regulations, an employer does not lose an exemption by paying overtime to an exempt employee. See 29 C.F.R. § 541.604(a).
The January 2008 reclassification is not materially relevant to the determination of whether Sarkar falls within the computer employee exemption. As noted above, a significant percentage of these FLSA overtime suits are triggered by such reclassifications — the mere fact that an employee was reclassified cannot establish an employer's liability for the period prior to the reclassification. Sarkar does not cite a single case suggesting otherwise.
Instead, the exempt status of a given employee depends upon an analysis of the employee's job duties. See 29 C.F.R. § 541.2 ("The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the [exemption]."); Liger v. New Orleans Hornets NBA Ltd. P'ship, No. 05 Civ. 1969, 2008 U.S. Dist. LEXIS 9098, at *7 (E.D. La. Feb. 6, 2008) (finding that "evidence of the [defendant's] post-lawsuit compliance with the FLSA is not relevant to determining whether the [defendant] can claim the exemption during the period of time before the lawsuit was filed"); Mike v. Safeco Ins. Co. of Am., 274 F. Supp. 2d 216, 221 (D. Conn. 2003) (holding, in denying plaintiff's motion for collective action certification, that "[t]he fact that Safeco decided to re-classify all Claims Representatives, including all Field Claims Representatives, does not provide the necessary common thread," and that "[t]he merits of [plaintiff's] claim will turn upon evidence relating to [his] day-to-day tasks, and not upon any Safeco company policy or decision"); Black v. Comdial Corp., No. 92 Civ. 81, 1994 U.S. Dist. LEXIS 2457, at *7-10 (W.D. Va. Feb. 15, 1994) (finding administrative exemption inapplicable to plaintiff based on analysis of his job duties, not because defendant had reclassified plaintiff's position as nonexempt after a DOL audit).
Here, as discussed above, Sarkar's job duties place him within the computer employee exemption. The mere fact of the January 2008 reclassification is not enough to raise a genuine issue regarding his exempt status.
In sum, the Court finds that JPM is entitled to summary judgment on the claims of Plaintiff Sarkar because he is in fact exempt under § 213(a)(17)'s computer employee exemption. Accordingly, the Court need not reach JPM's other asserted bases for exemption. See Bobadilla, 2005 U.S. Dist. LEXIS 18140, at *29-30 ("Because the plaintiff is an exempt computer employee under Section 213(a)(17), it is unnecessary to reach the defendant's additional argument that the plaintiff is an exempt administrative or professional employee under 29 U.S.C. § 213(a)(1).").
E. Sarkar's Rule 56(f) Application
In a final attempt to stave off summary judgment, Sarkar submits a Rule 56(f) affidavit with his opposition papers, asking the Court to delay ruling on JPM's motion so that he can depose two of JPM's declarants and obtain additional "training and supervision documents." (Klein 56(f) Decl. ¶ 27.) Sarkar's Rule 56(f) application is denied as procedurally improper and substantively meritless.
1. Sarkar's Rule 56(f) Application Is Procedurally Improper
Under Rule 56(f), "If a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order." Fed.R.Civ.P. 56(f).
However, it is well established that Rule 56(f) "applies to summary judgment motions made before discovery is concluded." RSL Comm'ns PLC v. Bildirici, 649 F. Supp. 2d 184, 221 (S.D.N.Y. 2009) (quoting McAllister v. N.Y. City Police Dep't, 49 F. Supp. 2d 688, 696 n. 5 (S.D.N.Y. 1999)); accord Espada v. Schneider, 522 F. Supp. 2d 544, 549 (S.D.N.Y. 2007) (denying plaintiff's Rule 56(f) application because "[t]he relief that may be afforded under Rule 56(f) is not available when summary judgment motions are made after the close of discovery").
Here, as Sarkar acknowledges, fact discovery for the instant motions closed on January 15, 2009, and the period for depositions ended on February 27, 2009. (Klein 56(f) Decl. ¶¶ 8-9.) Magistrate Judge Freeman set these discovery deadlines with all parties knowing that JPM would be moving for summary judgment about a month after the end of depositions. (See Docket No. 32 (Order, Oct. 24, 2008).) Discovery was "targeted" for Plaintiffs' collective action certification motion, and for "Defendant's motion for summary judgment on the merits of Plaintiffs' individual claims." (See id.; Klein 56(f) Decl. ¶ 6.) Now, four months after the close of fact discovery, and more than two months after the end of depositions, Sarkar seeks a reprieve under Rule 56(f). Such relief is not available to Sarkar at this late stage.
Further, Sarkar's Rule 56(f) application seeks discovery expressly denied by Magistrate Freeman. On April 6, 2009, more than a month after the close of discovery, Plaintiffs sent a letter to Magistrate Freeman requesting that she compel additional discovery. (Klein 56(f) Decl. Ex. J.) On April 27, 2009, Magistrate Freeman held a hearing to resolve the dispute.
During that hearing, Magistrate Freeman repeatedly noted the dilatory nature of Plaintiffs' requests. (See, e.g., Aff. of Debra Morway in Supp. of Def.'s Reply to P1. Sarkar's Rule 56(f) Aff, June 1, 2009 ("Morway 56(f) Aff."), Ex. C (Hr'g Tr., Apr. 27, 2009 ("4/27/09 Tr.")), at 8:8-9, 47:6-14, 96:12-19.) Nevertheless, Magistrate Freeman granted Plaintiffs additional electronic discovery relating to the training and supervision of Clarke and Sarkar, and directed the parties to agree on search terms and time limits. (See id. 56:9-57:14.) The parties reached an agreement on May 6, 2009 (see Morway 56(f) Aff. Ex. J (Joint Ltr. to Magistrate Freeman)), and JPM produced additional documents relating to Plaintiffs' training and supervision on May 12, 2009 (see id. Ex. K (JPM Cover Ltr. for Supplemental Production)).
With the exception of the additional electronic discovery discussed above, Magistrate Freeman denied Plaintiffs' requests at the April 27 hearing. (See 4/27/09 Tr. 99:9-10.) Magistrate Freeman instructed Plaintiffs that to obtain any further discovery, they would have to provide her with specifics regarding the item requested, why it was necessary to oppose summary judgment, when it was requested, how JPM responded to the request and, if the request was late, the burden on JPM to produce it. (See id. 99:9-100:11.) On April 30, Plaintiffs again wrote Magistrate Freeman, requesting, inter alia, that she order the depositions of two of JPM's declarants (and coworkers of Sarkar), Suresh Kumar ("Kumar") and Peter MacDonald ("MacDonald"). (Klein 56(f) Decl. Ex. K.) On May 8, 2009, Magistrate Freeman denied Plaintiffs' request for those depositions. (Docket No. 54.)
Now, in his Rule 56(f) application, Sarkar again asks to depose Kumar and MacDonald. In other words, Sarkar seeks to relitigate a discovery issue already decided by Magistrate Freeman. The Court sees no reason to disturb Magistrate Freeman's decision, particularly in light of the fact that the Court has not relied at all on the declarations of Kumar or MacDonald in reaching today's decision.
At the April 27 hearing, Magistrate Freeman predicted that "Judge McMahon would [not] be likely to smile upon [a Rule 56(f) affidavit] because she would likely say where were you in the period Judge Freeman set." (4/27/09 Tr. 94:10-20.) That is exactly what this Court says now. Plaintiff Sarkar's Rule 56(f) application is denied.
2. Sarkar's Rule 56(f) Application Is Meritless
Even if Sarkar's Rule 56(f) application were procedurally proper, it is meritless. It is well established that a party resisting summary judgment on Rule 56(f) grounds "must submit an affidavit showing (1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003) (internal quotations and citation omitted).
Sarkar fails to identify the facts he seeks or how they would create a genuine issue of material fact. Instead, he merely asks to depose Kumar and MacDonald "to test the meaning of their generalized statements in support of their employer's position," and to obtain additional "training and supervision documents" that "Plaintiffs believe will strongly support their opposition to summary judgment." (Klein 56(f) Decl. ¶¶ 22, 24.)
Moreover, as noted above, the Kumar and MacDonald declarations have played no part in the Court's decision to grant JPM's motion. The Court thus sees no reason to delay its decision so Sarkar can depose them.
As for training and supervision documents, they are relevant principally to the issue of whether Sarkar's work entailed "the exercise of discretion and independent judgment," a requirement for the administrative exemption of § 213(a)(1). As this opinion has made clear, the computer employee exemption of § 213(a)(17) does not require the exercise of discretion and independent judgment. Thus, the Court does not see how forcing JPM to produce additional documents related to Sarkar's training and supervision could change today's result. Simply put, this decision is based primarily on Sarkar's own testimony, which clearly establishes that his job duties at JPM place him within the computer employee exemption. There is no reason to delay a decision on JPM's motion so Sarkar can depose two irrelevant witnesses and obtain additional documents that will not allow him to avoid summary judgment. Accordingly, Sarkar's Rule 56(f) application is denied on the merits.
IV. Plaintiffs' Motion for Conditional Collective Certification Is Denied as Moot
As explained herein, JPM is entitled to summary judgment on the claims of both Plaintiffs Clarke and Sarkar. Thus, Plaintiffs' collective action certification motion is denied as moot. Cf. English v. Ecolab, Inc., No. 06 Civ. 5672, 2008 U.S. Dist. LEXIS 25862, at *1-2, 55 (S.D.N.Y. Mar. 31, 2008) (granting defendant's motion for summary judgment on plaintiffs' FLSA claims and thus not reaching plaintiffs' motion for conditional certification).
CONCLUSION
For the reasons set forth above, the Court grants JPM's motions for summary judgment on the claims of Clarke and Sarkar. Plaintiffs' motion for conditional collective action certification is denied as moot. The Clerk of the Court is directed to remove Docket Nos. 37, 43 and 49 from this Court's list of pending motions, and to close this case.