Opinion
No. 97-CV-02729
June 23, 1999
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE COMPLAINT AND RULING ON PLAINTIFFS' AND DEFENDANTS' MOTIONS FOR CLARIFICATION OF THE CLASS
Plaintiffs seek leave to amend the complaint to add as named Plaintiffs and class representatives six individuals who currently hold, or formerly held, Design Engineer and Facilities Engineer positions. Plaintiffs also request that the Court clarify the amended class to specify that the class includes all outside plant engineers in what Plaintiffs call "Design/Facilities Engineer" positions.
On the same day as Plaintiffs filed their motion seeking leave to amend the complaint and clarify the amended class,
Defendants filed a motion for clarification of the Court's amended class certification order of November 18, 1998 to specify that (1) separate subclasses are necessary for the Joint Pole Agreement (JPA) engineer, Building Industry Consultant (BIC) engineer, and Facilities Engineer positions; (2) Plaintiffs do not meet Rule 23 certification procedures for the JPA or BIC positions, and members of those classes must proceed as individuals; (3) the Facilities Engineer position is limited to individuals who held that specific job title in Los Angeles during the class period; and (4) the relevant period for subclass membership is June 24, 1994 through December 18, 1995.
The Court grants Plaintiffs' motion to amend the complaint to add as named Plaintiffs and class representatives Design and Facilities Engineers Thomas D. Crowley, Charles Hamann, Paulette Mitchell, Robin Nelson, Richard Velasquez, and Shirley Webb.
The Court also clarifies that the class includes all outside plant engineers in Design Engineer and Facilities Engineer positions, as well as in JPA and BIC positions. The Court finds it unnecessary to divide this action into subclasses at this time and, thus, does not consider Defendants' arguments about whether the JPA or BIC positions meet the requirements for certification. Because the Court grants Plaintiffs' motion to amend, it does not address whether Facilities Engineers are adequate representatives for Design Engineers. Finally, because the class as amended includes current Pacific Bell employees, the class period is not limited to June 24, 1994 through December 18, 1995.
BACKGROUND
Named Plaintiffs John Kelley and Craig Asmus are former first level engineering managers who worked on the installation and removal of equipment in Pacific Bell's central offices and the installation and maintenance of Pacific Bell's outside plant
The Court therefore does not repeat that discussion here. wiring. Outside plant wiring work involves wiring from one Pacific Bell office to another, or from a Pacific Bell facility to a cable termination point at or near a customer's premises.
Plaintiff Kelley asserts claims for his position as a Facilities Engineer and as a BIC Engineer, which he held as a dual position with the Facilities Engineer position in his last year of employment. Plaintiff Asmus brings claims from his job as a JPA Engineer. Defendants contend that there is no longer a JPA Engineer specialist position in the Los Angeles North area.
The Court's November 18, 1998 class certification order included a lengthy discussion of Plaintiffs' and Defendants' descriptions of the JPA, BIC, and Facilities Engineer positions.
Plaintiffs Kelley and Asmus allege that their positions, and those of other first level managers whose jobs involved similar duties, were improperly classified as exempt from applicable wage and hour laws. They contend that although they were classified as managers, they did not supervise other employees, spent only a small portion of their time doing substantive work related to Defendants' management policies or general business operations, and did not regularly exercise discretion or independent judgment. Plaintiffs Kelley and Asmus seek to recover unpaid overtime compensation accrued between 1993 and 1995.
In its November 18, 1998 amended order, the Court certified the class to include:
All individuals who were employed by Defendants as first level engineering managers in the positions of Facilities Engineer, Joint Pole Agreement (JPA) engineers, or Building Industry Consultant (BIC) engineers during the limitations period.
Defendants assert that the JPA, BIC, and Facilities Engineer positions differ from each other, and from other outside plant engineer positions, as a function of geography, time period of employment, supervisor, and area of subspecialization. Defendants also contend that the job titles assigned to employees who are responsible for particular sets of duties differ as a function of the same factors.
Pacific Bell outside plant engineers are part of the Engineering and Construction Organization, which is comprised of six geographic groups, each of which is overseen by a regional manager. Pifer Dec. ¶ 5. According to Defendants, regional managers determine how to organize their work force, what types of specialist engineers to use, and what type of work to delegate to contractors. Id. Specialist engineer positions include JPA, BIC, Hi-Cap, and P102 Engineers. Id. An employee may hold more than one specialist position at the same time, or during the course of his or her employment.
Defendants assert that Pacific Bell's job descriptions and pay structure for outside plant engineer positions have changed twice since 1995, when Kelley and Asmus were terminated. In 1996, Pacific Bell implemented the "New Pay Plan," in which outside plant engineers were organized into various families and sub-families of jobs, and into career stages (labeled A-C), based on their demonstrated knowledge, skills, and abilities within each job. April 16 Rogers Dec. ¶ 11. Pacific Bell no longer uses the New Pay Plan job families and instead has adopted "common job summaries," which provide a "five to six sentence description of the overall purpose of the jobs." Rosemeyer Dec. ¶ 3. Pacific Bell asserts that the common job summaries are used to establish the range of compensation for various outside plant engineer job positions. Id.
Plaintiffs contend that, regardless of differences in job title, location, supervisor, or time period of employment, first level management engineers share a common set of job duties.
Plaintiffs move to amend the complaint to add as named Plaintiffs and class representatives current Pacific Bell employees Robin Nelson, Richard Velasquez, and Thomas Crowley, and former Pacific Bell employees Paulette Mitchell, Shirley Webb, and Charles Hamann. All of the proposed class representatives are, or were, classified as outside plant engineers and hold, or held, Facilities Engineer, Design Engineer, or BIC Engineer positions.
Mr. Hamann was a Facilities Engineer in the Los Angeles area from 1980 until his retirement in 1997. He received route responsibility in 1980, after completing his initial engineering training. Although Mr. Hamann could create his own designs, called work prints, he could not approve the designs of others.
Hamann Dep. at 143. Mr. Crowley is currently a Facilities Engineer in Los Angeles, and has held this position since 1994.
Mr. Crowley performed some BIC Engineer responsibilities for a short period of time in 1995, during which time he continued to perform some of the duties of a Facilities Engineer, and his performance appraisals listed him as a Facilities Engineer. Crowley Dep. at 293-94.
Ms. Mitchell, Ms. Webb, and Ms. Nelson have held, or currently hold, Design Engineer positions. Ms. Mitchell was an outside plant engineer in Napa from 1986 to 1995, Mitchell Dep. 15:3-5, during which time she held three assignments: subdivision outside plant design, id. at 60, conduit design, id. at 62, and route engineer, id. at 70. Ms. Mitchell indicated that her design positions involved preparing work prints, id. at 63, and developing design outlines from which contractors drew the prints, id. at 174.
Ms. Webb was an outside plant engineer from 1988 until 1996. Ms. Webb referred to herself as a Design Engineer for this entire period, although she held assignments as a BIC Engineer, route engineer for the San Jose area, scheduler, and P102 service specialist. Ms. Webb testified that the scheduler relieved route engineers from having to do their own scheduling, and that, as a scheduler, Ms. Webb received "incoming jobs done by contract, reviewed them for accuracy . . . and sent them out." Webb Dep. at 62. While she was a scheduler, Ms. Webb spent approximately ten to twenty percent of her time designing work orders. Id. at 89.
As a P102 specialist, Ms. Webb received P102 orders by facsimile and determined whether the job could be completed by rearranging cable in the existing plant, or whether it required that an installer visit the site. Id. at 107. If the job required that an installer be sent to the site, Ms. Webb would either design the job herself, "if it was just short, a little quick job," or send it to the scheduler to forward to a contractor. Id. at 107-108. As a P102 specialist, Ms. Webb spent approximately twenty percent of her time designing jobs. Id. at 109.
Ms. Nelson has been an outside plant engineer in the Northern Bay Area since 1991, during which time she has had assignments as a third service engineer, route engineer, and customer service engineer. As a third service engineer, she responded to customer requests for additional service by visiting the location "to see if there [was] enough wire," informing the customer of the need for a trench, re-visiting the location to confirm that a trench was provided, and completing paperwork to send the job to the construction crew. Nelson Dep. at 42. As a route engineer, she placed cable, copper cable, and pole lines on work prints. Id. at 136. She also was involved in projects that placed fiber and supporting technology on work prints, although she did not complete any fiber jobs on her own. Id. at 136.
Although Ms. Nelson's performance report for 1996 listed her as an "Engineer-Route Manager," it also indicated that she was "the Design Engineer for the Napa exchange . . . [and] for the UP-Valley area." Weber Dec., Exh. F, Nelson Dep. Exh. 3 (deposition Exh. 9), at 2. In her current position as a customer service engineer, Ms. Nelson has responsibility for P102 orders (also called "held service" orders), rather than for a geographic region. Id. at 97. Ms. Nelson spends sixty to seventy percent of her time preparing work prints. Id. at 107.
She also makes sure the list of service orders is correct, id. at 97, and develops ideas for reducing the number of held orders, id. at 100.
Mr. Velasquez has been an outside plant engineer in the San Jose area since 1987. In this time, he has held positions as a BIC Engineer, as "Design Route Engineer," Velasquez Depo. at 44, and, for three or four months in 1995, as a "Hi Cap planning specialist." Id. at 114-15. Mr. Velasquez contends that the Hi Cap planning specialist position involved receiving service orders, deciding how to provide HiCap service to the customer, based in part on reviewing cable records and performing calculations using a computer software program, and then compiling and sending the information to a design engineer to draft the work print. Id. at 115-116.
For an unspecified period of time starting in April, 1998, Mr. Velasquez held a special assignment as an Engineering Contract Administrator. The parties agree that Mr. Velasquez is not an adequate class representative for the period in which he held this special assignment.
DISCUSSION
I. Request for Clarification
A. Division into Subclasses
Defendants contend that the JPA and BIC Engineer positions differ from each other and from the Facilities Engineer position, and that the class therefore fails to satisfy the commonality or typicality requirements and should be divided into subclasses. Defendants argue that the commonality requirement is not met because the JPA, BIC, and Facilities Engineer positions each have a unique set of job duties and functions. However, Plaintiffs provide evidence that, although some of the job functions performed by employees holding these positions differ, many of the functions performed by JPA and BIC engineers were also performed by Facilities Engineers.
For example, the second level manager who supervises BIC and Facilities Engineers in north Los Angeles indicated that although the JPA position no longer exists in her area, some of the JPA responsibilities have been assumed by Facilities Engineers responsible for geographic areas where poles are located. April 16 Rogers Dec. ¶ 6. Proposed Plaintiff Crowley, a Facilities Engineer, likewise indicated that there is substantial overlap in the functions of JPA, BIC, and Facilities Engineers when he gave deposition testimony that, if he were a plaintiff in this case, he would be representing "facility engineers, joint pole engineers . . . building engineers, engineers basically that do the same job that I do." Crowley Dep. at 23.
In addition, the fact that some employees were responsible for BIC and Facilities Engineer duties at the same time (such as Plaintiff Kelley and proposed Plaintiff Crowley), or held those positions consecutively (such as proposed Plaintiffs Webb and Velasquez), indicates that those positions involved common duties and functions. See also July 21, 1998 Escudero Dec. ¶¶ 3, 16 (in areas where specialist positions, such as BIC engineers, are not created, route managers function as generalists); Mitchell Dep. at 249 (BIC, Facilities Engineer, and route engineers could do some of the same design work).
The Court therefore concludes that questions of what duties the JPA, BIC, and Facilities Engineer positions entailed, what level of discretion was required to perform these common duties, and whether the employees responsible for such duties were properly classified as exempt, are common to all three positions.
Defendants also contend that the class does not meet the typicality requirement, and claims that this Court "found that there was no typicality between individuals who held different engineering positions." Defendants' reply in support of motion for clarification, at 3. Defendants misconstrue the Court's holding.
The Court found that Plaintiffs satisfied the typicality requirement because their positions "were sufficiently similar to those of their colleagues," November 18 order at 31, but that the typicality requirement was not met for positions that Plaintiffs Kelley and Asmus did not hold. Id. The Court did not find, as Defendants suggest, that typicality was lacking because the class included representatives of JPA, BIC, and Facilities Engineer positions.
Defendants also argue that division of the class into subclasses is required under Forsberg v. Pacific Northwest Bell Tel. Co., because the BIC, JPA, and Facilities Engineer positions involved different skills, effort, responsibilities, and working conditions. 1985 U.S. Dist. LEXIS 21232, *42-48, 623 F. Supp. 117 (D.C. Or. 1986), aff'd on other grounds, 840 F.2d 1049 (9th Cir. 1988). Forsberg is distinguishable. In Forsberg, the plaintiff sought to certify a class of maintenance administrators (MAs) to pursue claims under Title VII and State and federal equal pay acts. To prevail, the plaintiff had to establish that the MA position required equal skill, effort, and responsibility as the comparator position. Id. at *42. The court found that the plaintiff could not establish commonality or typicality based solely on a company-wide job description and an affidavit from a vocational expert, id. at *43, and refused to certify the class. Unlike in Forsberg, Plaintiffs provide multiple sources of evidence to establish that their positions are typical of other employees who hold those job titles, and that there is commonality among the BIC, JPA, and Facilities Engineer positions.
Moreover, commonality and typicality are not precluded merely because employees who held the same job titles as Plaintiffs spent a different proportion of time on the same, or functionally equivalent, tasks. Defendants classified Plaintiffs using interchangeable job titles, assigned to Plaintiffs a common and overlapping set of job functions, and classified positions responsible for those functions as exempt.
Neither are commonality or typicality precluded because the workforce is geographically dispersed. Defendants rely in part on Donninger v. Pacific North West Bell, Inc., 564 F.2d 1304 (9th Cir. 1977), and Wofford v. Safeway Stores, Inc., 78 F.R.D. 460 (N.D.Cal. 1978), to argue that organizational differences between the Facilities Engineer position in Los Angeles and the positions of engineers performing outside plant functions in other parts of the State preclude finding that the Los Angeles Facilities Engineer position is common or typical. Both Donninger and Wofford are distinguishable from this case.
In Donninger, thirty-one female employees brought causes of action alleging discrimination under Title VII and the Equal Pay Act. The court denied certification, in part because the action involved six separate affirmative action programs with decentralized enforcement, and potentially different practices and methods of implementation. 564 F.2d at 1311. The court also noted that there were "no allegations in the complaint specifying questions of law or fact claimed to be common to the class."
In Wofford, the plaintiffs alleged discrimination against women, African Americans, Hispanics, Asians, and Native Americans in recruiting, hiring, non-performance-related job requirements, terminations, training, promotion, and job assignments in one of twenty-one retail divisions that itself involved 200 retail stores. 78 F.R.D. at 471. The court indicated that to determine whether certification is appropriate, a court must "examine the contours of the proposed class to ensure that it is limited to that group commonly affected by the pattern of discrimination shown." 78 F.R.D. at 480. The court cautioned that plaintiffs bear the burden of establishing a common element in cases, such as Wofford, in which the plaintiffs challenged a "broad array of [employment] practices, not specifically defined and spread over a large, diverse, farflung, locally autonomous business operation." Id. However, the court then certified three subclasses to proceed with the case. Id. at 493.
Unlike in Wofford and Donninger, Plaintiffs challenge a single, well-defined employment practice in this case, namely misclassifying as exempt their positions, which involved a common and overlapping set of functions. Regional differences appear to exist regarding whether these functions were grouped together and assigned to employees who were classified as generalists, or whether particular functions were separated and assigned to employees who were classified as specialists. This fact does not create fundamental differences in the functions assigned to Plaintiffs with employees' job titles, nor does it justify Defendants' practice of classifying employees responsible for those functions as exempt, which Plaintiffs suggest was uniform across position and location. This case thus differs from both Donninger and Wofford on these grounds.
To divide into subclasses individuals that Defendants themselves grouped together is neither required pursuant to Rule 23, nor would it facilitate the management of this action. In light of the fact that some employees held multiple job titles while performing the same job functions, dividing the class into subclasses would only further complicate the question of whether Plaintiffs were improperly classified as exempt. The Court thus finds that division of this action into subclasses is not required by Rule 23, and declines to do so at this time.
B. Rule 23 Requirements for Subclasses and Subclass Limitation
Because the Court declines to divide the class into subclasses, it does not consider whether individual subclasses would meet the requirements of Rule 23. Because the Court grants Plaintiffs' motion to amend the complaint, as discussed below, it does not address the parties' arguments about whether Facilities Engineers are adequate representatives for Design Engineers.
C. Class Period
Defendants contend that the appropriate class period is June 24 through December 18, 1995, and assert that changes in job duties and technology that occurred after that period make Plaintiffs Kelley and Asmus inadequate representatives of current Pacific Bell employees. Because the Court grants Plaintiffs' motion to amend, as discussed below, Plaintiffs now include as class representatives current Pacific Bell employees.
Defendants' argument is moot.
II. Motion to Amend
A. Legal Standard
Under Federal Rule of Civil Procedure 15(a), leave of the court allowing a party to amend its pleading "shall be freely given when justice so requires." Leave to amend lies within the sound discretion of the trial court, which discretion "must be guided by the underlying purpose of Rule 15 — to facilitate decisions on the merits rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citations omitted). Thus, Rule 15's policy of favoring amendments to pleadings should be applied with "extreme liberality." Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citations omitted).
The Supreme Court has identified four factors relevant to whether a motion for leave to amend should be denied: undue delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party. See Foman v. Davis, 371 U.S. 178, 182 (1962). These factors are not of equal weight; specifically, delay alone is insufficient ground for denying leave to amend. See Webb, 655 F.2d at 980. Further, the "liberality in granting leave to amend is not dependent on whether the amendment will add causes of action or parties." DCD Programs, 833 F.2d at 186. Rather, the court should consider whether the proposed amendment would cause the opposing party undue prejudice, is sought in bad faith, or constitutes an exercise in futility. See id. (citing Acri v. International Ass'n of Machinists Aerospace Workers, 781 F.2d 1393, 1398-99 (9th Cir.), cert. denied, 479 U.S. 816 (1986); United States v. City of Twin Falls, 806 F.2d 862, 876 (9th Cir. 1986), cert. denied, 482 U.S. 914 (1987).
Prejudice typically arises where the opposing party is surprised with new allegations which require more discovery or will otherwise delay resolution of the case. See, e.g., Acri, 781 F.2d at 1398-99; Guthrie v. J.C. Penney Co., 803 F.2d 202, 210 (5th Cir. 1986). The party opposing the motion bears the burden of showing prejudice. See DCD Programs, 833 F.2d at 186; Beeck v. Aquaslide `N' Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977).
B. Proposed Amendment
Plaintiffs seek leave to amend the complaint to add as named Plaintiffs and class representatives six outside plant engineers in Facilities Engineer and Design Engineer positions, and to clarify that the class includes all outside plant engineers in what Plaintiffs term Design/Facilities Engineer positions, as well as JPA and BIC positions.
1. Undue Delay and Prejudice
Defendants contend that Plaintiffs have unduly delayed in bringing this motion because the class is already certified, Defendants' motion for summary judgment has been decided, and three of the proposed Plaintiffs — Mitchell, Velasquez, and Nelson — were known to Plaintiffs and could have been added within a month of filing the original complaint.
Plaintiffs originally moved to certify a class of all first level management engineers who supported the installation or maintenance of Pacific Bell's outside plant wiring, including persons who held the job title of Facilities Engineer and its functional equivalents. Plaintiffs asserted in their motion for class certification that the Design Engineer and Facilities Engineer positions were functional equivalents, and that at least some Pacific Bell employees used the job titles interchangeably.
In its November 18, 1998 order, the Court limited the class to the Facilities Engineer, JPA Engineer, and BIC Engineer positions held by named Plaintiffs Kelley and Asmus. At a November 20, 1998 case management conference, the Court indicated that it lacked sufficient information to determine the closing date of the class period, or to decide whether Facilities Engineers were functional equivalents or proper representatives of Design Engineers. At that time, the parties discussed the possibility of making additional motions to clarify the class, including the possibility of amending the complaint to add Design Engineers and current Pacific Bell employees as class representatives. The Court directed the parties to file any such motions on January 8, 1999. In a letter dated January 7, 1999, the parties notified the Court that additional discovery was required, and that they were in the process of negotiating a new schedule. On March 29, 1999 the parties filed a stipulation setting a new briefing schedule for those motions. Plaintiffs' motion to amend is therefore not untimely.
Defendants also refer to Schaulis v. CTB/McGraw-Hill, Inc., 496 F. Supp. 666 (N.D.Cal. 1980), and In re Norplant Contraceptive Prod. Liab. Litig., 163 F.R.D. 258 (E.D.Tex. 1995), to support their assertion that they would be unduly prejudiced if Plaintiffs' motion were granted. However, Schaulis and In re Norplant are inapposite.
In Schaulis, the motion to amend was made after discovery had closed and summary judgment had been granted against one of the two named plaintiffs. 496 F. Supp. at 676-77. In In re Norplant, the court denied a motion to amend to add new class members because discovery on class certification had closed, and the briefing was under submission, but the defendants had not had an opportunity to depose the proposed class representatives. 163 F.R.D. at 260. In this case, Defendants were on notice that Plaintiffs sought to certify a class consisting of all first level management engineers, the Court left open the issue of the expansion of the class, and Defendants have deposed the proposed Plaintiffs.
2. Relation Back
Defendants also argue that adding the proposed class members would impermissibly extend the statute of limitations.
Plaintiffs do not need to relate back proposed Plaintiffs to the original complaint, however, because the original complaint sought to certify a class that included all first level management engineers, including proposed Plaintiffs. Even if proposed Plaintiffs were required to relate back, Plaintiffs' proposed amendment meets the requirements for relation back.
Under Rule 15(c) of the Federal Rules of Civil Procedure, an amendment adding a party plaintiff relates back to the date of the original pleading if (1) the original complaint gave the defendant adequate notice of the claims of the newly proposed plaintiff, (2) relation back does not unfairly prejudice the defendant, and (3) there is an identity of interests between the original and newly proposed plaintiffs. See In re Syntex Corp. Securities Litigation, 95 F.3d 922, 935 (9th Cir. 1996); Besig v. Dolphin Boating Swimming Club, 683 F.2d 1271, 1278-79 (9th Cir. 1982).
As noted above, Plaintiffs' complaint gave Defendants notice of the claims of a proposed class of all first level engineers, which includes all of the proposed class members' positions. In addition, although Defendants contend that the bulk of their discovery focused on the named Plaintiffs' positions and period of employment, from 1992 to 1995, Defendants have conducted discovery to oppose the motion for class certification, which included other positions, and to oppose this motion, which included employment after 1995.
Defendants therefore would not be prejudiced by Plaintiffs' proposed amendments.
Defendants also argue that, as in Besig v. Dolphin Boating Swimming Club, 683 F.2d at 1278-79, and In re Syntex Corp.
Securities Litigation, 95 F.3d at 935, there is no identity of interest between Plaintiffs and proposed Plaintiffs.
In Besig, the court concluded that identity of interest was lacking because the named plaintiffs had been granted relief and the relief sought by the new plaintiffs was different from, and hostile to, the relief sought by the original plaintiffs. 683 F.2d at 1278. In this case, Plaintiffs do not seek to add new class members in order to assert substantively different claims or to seek relief that is hostile to that sought in the original complaint.
In In re Syntex, a securities class action case, the court found identity of interest lacking between two groups of plaintiffs because their claims were based on separate transactions: the two groups had purchased the stock at different values, and based on different disclosure statements. 95 F.3d at 935. In this case, Plaintiffs' and proposed Plaintiffs' claims that they were misclassified as exempt arise from their common set of job titles, responsibilities, and actual job activities.
Although Defendants contend that identity of interest is precluded because of factual differences between Plaintiffs' jobs and those held by proposed Plaintiffs, several proposed Plaintiffs hold, or have held, the same job titles as named Plaintiffs. Moreover, Plaintiffs provide evidence that Pacific Bell considers the positions held by Plaintiffs and proposed Plaintiffs to be functionally the same. See April 16 Rogers Dec. ¶ 1 ("I am presently a second-level Engineering Manager responsible for supervising . . . Facilities Engineers, also known as Design Engineers"); Nordeen Dec. ¶ 1 ("I supervise Design Engineers, which are also called Facilities Engineers"); Prindiville Dec. ¶ 12 ("The Facilities Engineer, which is also referred to as a Design Engineer"); Freestone Dec., Exh. D, Escudero Dep. ("The term `facilities engineers' was a term that was used to describe an outside plan [sic] engineer in the southern part of the state. . . . [in] the Northern part of the state, the term was `design engineer.'").
Both Plaintiffs and proposed Plaintiffs are outside plant engineers. Proposed Plaintiffs Hamann and Crowley are Facilities Engineers, and proposed Plaintiffs Velasquez and Webb have had assignments as BIC Engineers.
Finally, Plaintiffs and proposed class representatives describe performing similar activities, including (1) creating work prints and planning designs, see e.g. Kelley Dep. at 203; Mitchell Dep. at 249; Nelson Dep. at 42, 107, 142; Velasquez Dep. at 62; Webb Dep. at 107-09; (2) coordinating the implementation of designs; (3) reviewing contractors' design work, see Webb Dep. at 125, 134; Nelson Dep. at 304; Hamann Dep. at 410; Velasquez Dep. at 168; (3) overseeing pole and cable placement in the field, see Asmus Dec. ¶ 7; Nelson Dep. at 42; and (4) working on a designated route, see e.g. Nelson Dep. at 97-100 (route work variously included responsibility for "joint poles," "customer issues," and held service orders); Velasquez Dep. at 42:15-21 ("route engineer," "wire center engineer," and "design engineer" for a wire center are the same).
The Court thus finds that an identity of interest exists between Plaintiffs and proposed Plaintiffs, who assert the same claims and seek the same relief as Plaintiffs, are classified the same by Pacific Bell, share the same job titles, and engage in a common set of job activities. Based on the foregoing, the Court finds that the requirements of Rule 15(c) are met, and that the statute of limitations does not present a bar to Plaintiffs' proposed amendment.
3. Damages
Defendants also argue that Plaintiffs cannot expand the class period to the present under Rule 8(a) because Plaintiffs did not provide notice in their original complaint that they sought prospective damages. However, Rule 15(a) allows a party to increase the amount of damages sought, see e.g. Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242 (8th Cir. 1971); Goldenberg v. World Wide Shippers Mov. of Chicago, 236 F.2d 198, 200 (7th Cir. 1956), or to elect a different remedy than the one originally requested, see United States v. Hougham, 364 U.S. 310, 316 (1960).
4. Rule 23 Criteria
a. Numerosity
The Court has already found the numerosity requirement satisfied based on the number of employees classified as Facilities Engineers, JPA Engineers, and BIC Engineers.
Neither, as discussed above, does the Court find it necessary to create separate subclasses in this action. Therefore, the Court need not consider whether Design Engineers would meet the numerosity requirement if certified as a separate subclass.
Accordingly, the numerosity requirement is not a bar to the addition of proposed Plaintiffs and the expansion of the class.
b. Typicality and Commonality
Defendants argue that a class including Design Engineers cannot meet either the commonality or typicality requirements because the duties and functions of employees designated as Design Engineers vary by specialty assignment, location, supervisor, and time period. The Court finds, however, that the proposed amended class satisfies both the commonality and typicality requirements.
Plaintiffs provide evidence that Design Engineers perform a common set of duties, regardless of specialty assignment, and that many of those duties are the same as, or are functionally equivalent to, the duties performed by JPA, BIC, and Facilities Engineers. For example, all proposed Plaintiffs created work prints; proposed Plaintiffs Webb, Nelson, and Hamann were responsible for coordination functions; and proposed Plaintiffs Nelson, Velasquez, Webb, Hamann and Crowley had route responsibilities, which involved overlapping duties, and held specialist engineer positions that likewise involved some of the same duties. In addition, Plaintiffs provide evidence that some specialists perform functions that otherwise would be assigned to employees with route responsibility, such as Design Engineers or Facilities Engineers. See Webb Dep. at 62 (scheduler position relieves route engineers from doing their own scheduling). Design Engineers and the specialist positions to which proposed Plaintiffs were assigned while they were Design Engineers thus share a common set of duties and functions.
In addition, a variety of the Design Engineer functions performed by proposed Plaintiffs were also performed by Plaintiffs. For example, Kelley also created work prints, had route responsibilities, and held a BIC Engineer assignment concurrently with his Facilities Engineer position, just as proposed Plaintiffs Velasquez and Webb did while they were Design Engineers. Similarly, Plaintiff Asmus and proposed Plaintiff Nelson were responsible for pole and cable replacement in the field.
As discussed above with regard to a class comprised of JPA, BIC, and Facilities Engineers, commonality and typicality are not precluded by the fact that proposed Plaintiffs who held the same job title spent different proportions of their time on the same, or functionally equivalent, tasks. Neither does the fact that proposed Plaintiffs held different specialty engineering assignments within the Design Engineer designation preclude a finding of typicality in light of the fact that those specialty positions involved similar duties and common responsibilities.
Nor is the fact that different specialists work with different technology evidence that those specialists perform substantively different functions or tasks.
The Court thus finds that questions about what the JPA, BIC, Facilities Engineer, and Design Engineer positions entailed, what level of discretion was required to perform duties common to those positions, and whether the employees responsible for those duties were properly classified as exempt thus are common to Design Engineers, as well as among Design Engineers and JPA, BIC, and Facilities Engineers. The Court likewise finds that proposed Plaintiffs' Design Engineer positions involved a set of functions that were sufficiently similar to other employees holding that job title, and to employees holding the JPA, BIC, and Facilities Engineer job titles, to satisfy the typicality requirement.
c. Adequacy
Defendants contend that the proposed class representatives cannot fairly and adequately protect the class because they cannot show that they are familiar with the facts of the case, their roles as representatives, or their interest in the outcome of the case.
An adequate representative must have the capacity to prosecute the action vigorously and be free from economic interests antagonistic to the interests of the class. See Larson v. Dumke, 900 F.2d 1363, 1367 (9th Cir. 1990). In Larson, in the context of a derivative shareholder action, the Ninth Circuit noted eight factors relevant to determining whether a party adequately represents the class: (1) indications that the plaintiff is not the true party in interest; (2) the party's unfamiliarity with the litigation and unwillingness to learn about the suit; (3) the degree of control exercised by the attorneys over the litigation; (4) the degree of support received by the plaintiff from class members; (5) the lack of a personal commitment to the action on the part of the representative plaintiff; (6) the remedy sought by the plaintiff in the action; (7) the relative magnitude of the plaintiff's personal interest, as compared to his or her interest in the action itself; and (8) the plaintiff's vindictiveness toward the defendants. Id. "These factors are `intertwined or interrelated, and it is frequently a combination of factors which leads a court to conclude that the plaintiff does not fulfill the requirements of [Rule] 23.1.'" Id. (quoting Davis v. Comed, Inc., 619 F.2d 588, 593 (6th Cir. 1980)).
The Court is satisfied that proposed Plaintiffs meet these requirements. These parties are true parties in interest, and there is no evidence that their interests are antagonistic to the class, or that they lack personal commitment to the action or are motivated by vindictiveness or a disproportionate amount of self-interest. Nor do Defendants suggest that Plaintiffs' counsel are exercising too little or too great a degree of control over the action. Finally, although proposed Plaintiffs' understanding of this action varies, there is no evidence that proposed Plaintiffs are unwilling or unable to learn about the suit.
Defendants argue that Mr. Crowley's interests are antagonistic to those of the class because he indicated at his deposition that he did not want the Facilities Engineer to be an hourly position. However, Mr. Crowley also indicated that he believed he should be compensated for his overtime. As Plaintiffs argued at the hearing, the fact that Mr. Crowley did not want to be an hourly employee, as opposed to a salaried employee, is not evidence that his interests are antagonistic to the class because an employee can be salaried and nonexempt.
This case thus differs from the cases on which Defendants rely. For example, in Welling v. Alexy (In re Cirrus Logic Sec.), 155 F.R.D. 654, 658-59 (N.D.Cal. 1994), the court found that the proposed plaintiff did not adequately represent the class because he had extensive prior securities litigation involvement, and no familiarity with the case or interest in monitoring counsel. In Weisman v. Darneille, 78 F.R.D. 669, 671 (S.D.N.Y. 1978), the named plaintiff was found to be an inadequate class representative in part because he had been convicted of violating the law under which the action was brought.
5. Unmanageability
Finally, Defendants contend that allowing Plaintiffs leave to amend their complaint to include Design Engineers as named Plaintiffs and class representatives would make the class unmanageable. The Court disagrees.
Plaintiffs provide evidence that, despite differences in terminology, the specialty engineering positions held by proposed Plaintiffs held are functional specializations of the Design Engineer position that can be combined into one position or divided into separate specialty areas. See Escudero Dec. ¶ 1. Moreover, as discussed above, Plaintiffs provide evidence that Defendants considered the Design Engineer position to be the functional equivalent of the Facilities Engineer position, and used those job titles interchangeably. In addition, the Design Engineer and JPA, BIC, and Facilities Engineer positions involved a set of common and overlapping job functions.
Although Defendants provide evidence that proposed Plaintiffs spent differing percentages of their time on various functions, the functions themselves are common to most employees in the class. Finally, many of the proposed class representatives held multiple job titles during the course of their employment with Pacific Bell, and sometimes held more than one job title at the same time.
The addition of proposed Plaintiffs as class representatives will not make the class unmanageable and, in fact, will obviate the need to draw arbitrary distinctions between employees who performed the same job duties, and were classified the same by Pacific Bell, but whose positions had different titles.
The Court thus finds that the proposed class including Design Engineers satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.
CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiffs' motion for leave to file an amended complaint (Docket No. 170) to include as named Plaintiffs and class representatives Design/Facilities Engineers Thomas D. Crowley, Charles Hamann, Paulette Mitchell, Robin Nelson, Richard Velasquez, and Shirley Webb. The class in this action will then be modified to include all outside plant engineers in Design Engineer and Facilities Engineer positions, as well as in JPA and BIC positions.
The Court DENIES Defendants' motion (Docket No. 176) to clarify the class to specify that (1) separate subclasses are necessary for the JPA, BIC, and Facilities Engineer positions, (2) Plaintiffs did not meet Rule 23 certification procedures for the JPA or BIC classes and members of those classes must proceed as individuals, (3) the Facilities Engineer position is limited to individuals who held that job title in Los Angeles during the class period, and (4) the class period is limited to June 24, 1994 through December 18, 1995.