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Crystal Howard, John Huebner, Paul Galloway, Robert Newson, and v. Securitas Security Services Usa

March 28, 2013

CRYSTAL HOWARD, JOHN HUEBNER, PAUL GALLOWAY, ROBERT NEWSON, AND ALVAN YOUNG, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY
SITUATED, PLAINTIFFS,
v.
SECURITAS SECURITY SERVICES USA, INC., DEFENDANT. STEPHANIE HAWKINS AND DARSEMIA JACKSON, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
SECURITAS SECURITY SERVICES USA, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiffs in these two cases worked as hourly, non-exempt uniformed security officers for Defendant Securitas Security Services USA, Inc. The Howard plaintiffs allege violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., while the Hawkins plaintiffs allege violations of the FLSA and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq. Plaintiffs in both cases allege that they performed three categories of off-the-clock work:

(1) mandatory training and orientation; (2) work before and after their scheduled shifts; and (3) uniform cleaning and maintenance. The cases were reassigned to the same district judge's calendar on the ground that they "raise analogous legal and factual claims against the same defendant." Howard, Doc. 259 (Gottschall, J.). The court granted class certification in Hawkins under Federal Rule of Civil Procedure 23 for the IMWL training/orientation claim but not for the IMWL pre/post-shift work and uniform maintenance/cleaning claims. Hawkins, 280 F.R.D. 388 (N.D. Ill. 2011). Likewise, the only claim in Howard that remains certified for FLSA collective action treatment under 29 U.S.C. § 216(b) is the training/orientation claim. Howard, 2009 WL 140126 (N.D. Ill. Jan. 20, 2009) (Gottschall, J.) (conditionally certifying all three FLSA claims); Howard, Doc. 451 (decertifying the pre/post-shift work and uniform maintenance/cleaning claims).

Trial has been set in both cases for September 9, 2013. The court has bifurcated trial on the training/orientation claim-which, as just noted, is brought on behalf of a class in Hawkins and a collective in Howard-from trial on the pre/post-shift work and uniform maintenance/cleaning claims. Hawkins, Docs. 263-264; Howard, Doc. 514. And the court has denied Securitas's motion for summary judgment on the training/orientation claim brought by one of the Hawkins plaintiffs. Hawkins, Docs. 268-269. Now before the court are Securitas's motion in limine to preclude the expert testimony of Plaintiffs' designated expert, William Cutler, and Plaintiffs' motion in limine to preclude the expert testimony of Securitas's counter-expert, Alfred Perry. Howard, Docs. 419, 428. Both motions are granted.

Background

The factual background is set forth in prior opinions and will not be repeated here. Plaintiffs initially retained Oran Clemons as an expert witness, and Clemons prepared an expert report. Howard, Doc. 423 at 7. After Clemons became ill, Plaintiffs substituted Cutler, Howard, Doc. 394, who prepared his own expert report, Howard, Doc. 419-1. Cutler worked as a compliance specialist with the United States Department of Labor's Wage and Hour Division from 1966 until 1990. Id. at 7. In that role, Cutler conducted investigations of businesses to determine compliance with the FLSA. Ibid. Cutler entered the private sector in 1990, providing consultation to large employers regarding FLSA and state wage and hour matters. Id. at 12. Since 2000, Cutler has been the principal of Cutler Consulting Services LLC, which specializes in consultant and litigation support services involving wage and hour issues. Ibid.

Plaintiffs retained Cutler to "provide a determination regarding the defendant's status of compliance with the applicable provisions of the [FLSA] and the [IMWL] relative to the plaintiffs' allegations." Id. at 19. Cutler's report first addresses the relevant statutes, regulations, and interpretive bulletins. Id. at 19-41. It then excerpts several passages from Clemons's report, expresses Cutler's agreement with Clemons, and updates the damages calculations originally performed by Clemons. Id. at 42-55. Although the "Opinions" section of Cutler's report contains only one opinion, Cutler clarified at his deposition that he intends to offer three opinions. Id. at 56; Howard, Doc. 419-2 at 18, 28, 45. The first opinion is:

In my professional opinion and within a reasonable degree of professional certainty, based on the documentation and testimony reviewed and based upon my years of training and experience working at the [Wage and Hour Division] as a Compliance Specialist, I believe that an analysis of Securitas's pay practices using the methodology employed by a Compliance Specialist of the U.S. Department of Labor's [Wage and Hour Division] would result in a determination that Securitas has not paid the plaintiffs in compliance with the applicable wage and hour regulations..

Howard, Doc. 419-1 at 56. Cutler's second opinion is that "[w]hile working for the U.S. Department of Labor it would have been [his] recommendation that [Securitas's] violations are willful." Id. at 54. This opinion is relevant because the FLSA statute of limitations is three years rather than two years and liquidated damages are mandatory if an employer's FLSA violation is found to be willful. See 29 U.S.C. §§ 255(a), 260; Bankston v. State of Ill., 60 F.3d 1249, 1254-55 (7th Cir. 1995); Calderon v. Witvoet, 999 F.2d 1101, 1108 (7th Cir. 1993). Cutler's third opinion is: "In my professional opinion and within a reasonable degree of professional certainty, it is possible to extrapolate the results of a sampling to an entire class of employees" to calculate damages sustained by the class as a whole. Id. at 42; see also id. at 50, 52 (classwide damage estimates).

Securitas's proposed expert, Alfred H. Perry, worked for forty-one years at the Wage and Hour Division. Howard, Doc. 428 at 40. For the first thirteen years, he investigated employer compliance with the FLSA. Ibid. He later served as an Assistant Area Director, an Area and District Director, and a Regional Administrator. Id. at 40-41. Upon his retirement from the Department in 2002, Perry joined Jackson Lewis LLP as a Senior Consultant, providing guidance to employers on the FLSA and related statutes. Ibid. Securitas retained Perry to rebut the opinions offered by Plaintiffs' expert. Id. at 17. Not surprisingly, Perry comes to the opposite conclusion on the three topics addressed by Cutler. Id. at 36-37.

Discussion

Federal Rule of Evidence 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed.

R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010). The district court serves as the "gate-keeper who determines whether proffered expert testimony is reliable and relevant before accepting a witness as an expert." Winters v. Fru-Con Inc., 498 F.3d 734, 741-42 (7th Cir. 2007) (citation and internal quotation marks omitted). The expert's proponent bears the burden of proving by a preponderance ...


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