united states district court central district …hr.cch.com/eld/zackariawalmart.pdf · united...

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ALADDIN ZACKARIA, individually, andon behalf of others similarly situated,

Plaintiffs,

v.

WAL-MART STORES, INC., a Delawarecorporation, et al.

Defendants.

))))))))))))

Case No. ED CV 12-1520 FMO (SPx)

ORDER RE: MOTION FOR CLASSCERTIFICATION

Having reviewed and considered the briefing filed with respect to plaintiff’s Renewed Motion

for Class Certification (“Motion”), and concluding that oral argument is not necessary to resolve

the Motion, see Fed. R. Civ. P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684

n. 2 (9th Cir. 2001), the court rules as follows.

INTRODUCTION

Plaintiff Aladdin Zackaria (“plaintiff”) filed this wage and hour class action against Wal-Mart

Stores, Inc. (“Wal-Mart” or “defendant”) on August 3, 2011, in the San Bernardino County Superior

Court. (See Notice of Removal, Exhibit (“Exh.”) A (“Complaint”)). Defendant removed the case

to this court on September 6, 2012, pursuant to the Class Action Fairness Act, 28 U.S.C. §

1332(d)(2). Plaintiff brings this action individually and on behalf of individuals currently and

Case 5:12-cv-01520-FMO-SP Document 100 Filed 05/18/15 of 26 Page ID #:8891

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

formerly employed by defendant as an Asset Protection Coordinator (“APC”).1 (See Complaint

at ¶¶ 12-13). Plaintiff alleges that defendant knowingly misclassified him and “other class

members . . . as ‘exempt’ employees [under state law] and paid them on a salary basis, without

any compensation for overtime hours worked, missed meal periods or rest breaks.” (Id. at ¶ 19).

On these grounds, plaintiff asserts claims for: (1) failure to pay overtime, Cal. Lab. Code §§ 510,

1194, & 1198; (2) failure to pay minimum wage, Cal. Lab. Code §§ 1194 & 1197; (3) rest period

violations, Cal. Lab. Code §§ 226.7; (4) meal period violations, Cal. Lab. Code §§ 226.7 & 512;

(5) wage statement violations, Cal. Lab. Code § 226; (6) waiting time penalties, Cal. Lab. Code

§§ 201-03; (7) failure to maintain adequate records, Cal. Lab. Code § 1174; (8) failure to timely

pay wages, Cal. Lab. Code § 204; (9) unlawful business practices, Cal. Bus. & Prof. Code §§

17200, et seq.; and (10) civil penalties under the California Private Attorneys General Act, Cal.

Lab. Code §§ 2698, et seq. (“PAGA”). (See Complaint at ¶¶ 53-97).

On August 5, 2013, plaintiff filed a Motion for Class Certification seeking an order certifying

this case as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3).2 On

February 21, 2014, the court denied the Motion for Class Certification without prejudice. (See

Court’s Order of February 21, 2014, at 6). Plaintiff subsequently filed the instant Motion, and the

parties submitted a Joint Brief Re: Plaintiff’s Renewed Motion for Class Certification (“Joint Brief”).

Each party also filed summaries and appendices of evidence and additional briefing in support of

their respective positions.3

1 The title was changed to “Asset Protection Manager,” or “APM,” in 2012, (see Plaintiff’sAppendix of Evidence (“Plaintiff App’x”), Exh. 8.B, Wal-Mart Email dated February 8, 2012, atPA488), but the court will use APC for the sake of clarity and consistency.

2 All “Rule” references in this order are to the Federal Rules of Civil Procedure.

3 Plaintiff’s Reply in Support of His Motion for Class Certification (“Reply”) improperly submittedan additional appendix containing approximately 400 pages of evidence. (See Reply & Plaintiff’sSupplemental Appendix of Evidence). The court set forth a process that required the parties toidentify legal issues and evidence in support of each of their positions asserted in the Joint Brief. (See Court’s Order of February 21, 2014, at 7-8). The order permits only a “reply memorandumof points and authorities,” not hundreds of pages of additional evidence. (See id. at 9). The courtwill not consider evidence raised for the first time on reply. See Tovar v. U.S. Postal Serv., 3 F.3d1271, 1273 n. 3 (9th Cir. 1993) (“To the extent that the [reply] brief presents new information, it

2


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The class plaintiff seeks to have certified is defined as follows: “All current and former

California-based salaried Asset Protection Coordinators/Asset Protection Managers (or persons

who held similar job titles and/or performed similar job duties) who worked for Defendant Wal-Mart

Stores, Inc. in the State of California from four years preceding the filing of this lawsuit to final

judgment.”4 (See Joint Brief at i).

BACKGROUND

This case arises from plaintiff’s employment between March 2007 and January 20115 as

an APC at a Wal-Mart store in California (See Zackaria Decl. at PA14). APCs are part of Wal-

Mart’s asset protection program, which manages the “shrink, safety, and security at each of its

stores.” (See Joint Brief at 3); (id. at 4) (“APCs are responsible for deterring theft, preventing and

investigating accidents, ensuring compliance with regulatory procedures and security measures,

and auditing store processes to prevent losses.”).

Wal-Mart has over 220 stores in California. (See Plaintiff App’x, Exh. 4, Declaration of

Randy Wines, at PA19). The stores include general Discount Stores, which typically offer

electronics, apparel, toys, home furnishings, and hardware; Supercenters, which additionally offer

grocery stores with fresh produce and dairy products, are often open 24 hours, and may include

specialty shops such as pharmacies; and Neighborhood Markets, which are smaller stores that

offer groceries, household supplies, and pharmacy services. (See id. at PA19-20). All of the

is improper.”). In any event, the evidence submitted does not change the court’s conclusionsbelow.

4 The Motion does not request that the court appoint plaintiff as class representative or thathis counsel be appointed as class counsel. (See, generally, Joint Brief). Although the Joint Briefaddresses the adequacy of the representation by plaintiff, it does not address the experience orqualifications of the attorneys or their respective law firms. (See id. at 47-48).

5 The dates and positions of plaintiff’s employment are not entirely clear from the record. Inhis declaration, plaintiff states that he was employed by Wal-Mart between March 2007 andJanuary 2011 as an APC. (See Plaintiff App’x, Exh. 3, Declaration of Aladdin Zackaria (“ZackariaDecl.”) at PA14). However, his Associate History Profile indicates that he was hired in March 2007as a “Field Hrly,” was promoted to “AP Coordinator in Training in March 2008, and then became“AP Coordinator - Metro” in April 2008. (See Defendant’s Appendix of Evidence In Support ofOpposition to Renewed Motion for Class Certification (“Def. App’x”), Exh. CC, RedactedPerformance Evaluation for Aladdin Zackaria, at DE648).

3


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

California stores are divided into three different Regions, each of which is further subdivided into

Markets. (See Plaintiff App’x, Exh. 7.N, Deposition of Ron Lance, at PA403-04). Each Market

contains approximately 12 to 15 stores and is led by a Market Asset Protection Manager

(“MAPM”).6 (See id. at PA404-05). MAPMs manage the shrink, safety, and security of all of the

stores in their Markets with the help of each store’s APC. (See id. at PA406; Plaintiff App’x, Exh.

7.E., Deposition of Jeffrey Lyle Coburn (“Coburn Depo.”) at PA 247). Each store has only one

APC, and the APC is the individual with on-site authority with respect to asset protection. (See

Joint Brief at 2; Def. App’x, Exh. B, Declaration of Ronald Lance (“Lance Decl.”), at DE10).

An APC’s responsibilities include “Security, Detection and Deterrence, Safety and Crisis

Management, Inventory Shrink Management, and Associate Training.” (See Def. App’x, Exh. DD,

Confidential Asset Protection Coordinator Training Plan Dated 4/8/2009 (“APC Training Plan”) at

DE662). They are trained for at least six to eight weeks in topics such as investigation and

detention of shoplifters, safety awareness, internal theft investigations, security controls, refund

reviews, and register auditing. (See id. at DE657& DE670-79). Specifically, the APC job

description includes some of the following “essential functions”: “[c]ontrol[ling] the unexplained

loss of merchandise and improv[ing] profitability by identifying and communicating performance

goals and objectives . . . measuring adherence to loss prevention policies and procedures;

reviewing variances to Inventory reports; conducting operational and pre-Inventory reviews;

gathering data, auditing results and monitoring deficiency trends[,] . . . [d]etect[ing], deter[ring],

investigat[ing], and resolv[ing] violations of company policies and criminal activities by investigating

alleged fraud and other alleged illegal activities[, and] conducing investigations relating to the

operations and policies of the company[.]” (Plaintiff App’x, Exh. 8.C, Job Description for Asset

Protection Manager, Published on 12/6/2011 (“APC Job Description”), at PA494). The job

description further states that APCs are expected to “[m]anage[] facility level training . . . of asset

protection and safety functions” and “[s]upervise[] the Asset Protection Associate (APA) program

6 Wal-Mart’s former Regional Asset Protection Senior Manager stated that MAPMs areresponsible for overseeing between 6 and 19 stores. (See Plaintiff App’x, Exh. 5, Declaration ofMaryAnn Dabney (“Dabney Decl.”), at PA24).

4


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

by analyzing current store theft trends and external crime trends to create plans to control the

unexplained loss of merchandise[.]” (Id.). As the job description suggests, each APC directly

supervises a number of APAs. (See Joint Brief at 3-4). The number of APAs can range from one

to twelve, depending upon the store, and as of 2012, APCs also supervise Asset Protection

Egress Associates (“APEA”). (See Dabney Decl. at PA24). The primary functions of these APAs

and APEAs are to detect and deter external shoplifters, and to monitor store entrances and exits,

respectively. (See id.).

While the essential functions and competencies describe an APC’s job in general terms

(see APC Job Description at PA494-96), they do not describe the specific day-to-day duties of

APCs. Instead, daily tasks are set out in APC Routines and National Priorities.7 (See Plaintiff

App’x, Exh. 8.D, Asset Protection Coordinator Routine (“APC Routines”), at PA503-08; id. Exh.

8.E, National Priorities Learner Checklist (“National Priorities”), at PA510-12). The APC Routines

provide a “prioritized listing of time sensitive, [sic] daily and weekly tasks that an [APC] would be

responsible for completing.” (APC Routines at PA507). Although it is “not an all inclusive listing

and could vary depending on store format” (id.), it describes in significant detail the various tasks

that APCs across all Wal-Mart stores should complete regularly. (See id. at PA503-08). In

addition, National Priorities is Wal-Mart’s “task based audit program designed to help asset

protection and operations focus on high-shrinkage areas and dive into the root causes[.]”

(National Priorities at PA510). The results of these audits are submitted to Wal-Mart’s corporate

office regularly. (See Plaintiff App’x, Exh. 7.F, Deposition of MaryAnn Dabney (“Dabney Depo.”),

at PA264). APCs refer to Standard Operating Procedures from the Shrink Safety Operations

Playbook (“SSOP”),8 which provide specific instructions as to how to further investigate or remedy

7 “National Priorities” are now called Asset Protection Assessments, or “AP Assessments.” (See, e.g., Def. App’x, Exh. D-8, Declaration of Kristin Gutierrez (“Gutierrez Decl.”), at DE100; id.,Exh. D-10, Declaration of Aaron McQuerry, at 117). For the sake of clarity and consistency, thecourt refers to them as “National Priorities.”

8 The name of these procedures changed during the relevant time period, between SSOPsand National Priorities. (See Dabney Depo. at PA265). In this Order, the term “National Priorities”is intended to refer to these checklist-style documents for APC audits and investigations.

5


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

a particular problem. (See, e.g., Plaintiff App’x, Exh. 8.F., Examples of Standard Operating

Procedures, at PA514-602). The APC Routines, National Priorities, and Standard Operating

Procedures apply at every California Wal-Mart store. (See Coburn Depo. at PA259) (agreeing that

there are no “differences in the essential duties of [APCs] in the various markets in California”).

Since the APC position was created in 2006, Wal-Mart has considered APCs to be

managers and has treated them as exempt. (See Lance Decl. at DE13). Wal-Mart asserts that,

“[f]rom the very outset,” the APC role was to provide the leadership “required at the store level to

achieve the reduction in losses due to shrinkage, accidents and related issues which the Company

had experienced.” (Id. at DE7). Plaintiff, on the other hand, alleges that defendant misclassified

him and other APCs, thereby “engag[ing] in a uniform policy and systematic scheme of wage

abuse against the[] California-based salaried [APCs].” (See Complaint at ¶ 27). Plaintiff seeks

to certify a class action so that he may pursue his request for declaratory relief, unpaid wages,

penalties, interest, liquidated damages, civil penalties, and attorneys’ fees on behalf of all similarly

situated APCs. (See id. at 19-22, Prayer for Relief).

LEGAL STANDARD

This court has “broad discretion to determine whether a class should be certified, and to

revisit that certification throughout the legal proceedings before the court.” Armstrong v. Davis,

275 F.3d 849, 871 n. 28 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002), abrogated on other

grounds by Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141 (2005). The court need only form

a “reasonable judgment” on each certification requirement “[b]ecause the early resolution of the

class certification question requires some degree of speculation[.]” Gable v. Land Rover N. Am.,

Inc., 2011 WL 3563097, *3 (C.D. Cal. 2011) (internal quotation marks omitted).

Rule 23 permits a plaintiff to sue as a representative of a class if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions or law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

6


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(4) the representative parties will fairly and adequately protect the interests

of the class.

Fed. R. Civ. P. 23(a). Courts refer to these requirements by the following shorthand: “numerosity,

commonality, typicality and adequacy of representation[.]” Mazza v. American Honda Motor Co.

Inc., 666 F.3d 581, 588 (9th Cir. 2012).

In addition to fulfilling the four prongs of Rule 23(a), the proposed class must also meet at

least one of the three requirements listed in Rule 23(b). See Wal-Mart Stores, Inc. v. Dukes, 131

S.Ct. 2541, 2548 (2011). Here, plaintiff seeks class certification under Rule 23(b)(3), which

requires the court to find “that the questions of law or fact common to class members predominate

over any questions affecting only individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

Rule 23 requires the party seeking class certification to “affirmatively demonstrate . . .

compliance with the Rule[.]” Dukes, 131 S.Ct. at 2551 (internal quotation marks omitted). Thus,

a court must conduct a “rigorous” class certification analysis. Id. On occasion, this analysis “will

entail some overlap with the merits of the plaintiff’s underlying claim[,]” and “sometimes it may be

necessary for the court to probe behind the pleadings[.]” Id. (internal quotation marks omitted).

However, courts must remember that “Rule 23 grants courts no license to engage in free-ranging

merits inquiries at the certification stage.” Amgen Inc. v. Connecticut Ret. Plans & Trust

Funds,133 S.Ct. 1184, 1194-95 (2013) (“Merits questions may be considered to the extent – but

only to the extent – that they are relevant to determining whether the Rule 23 prerequisites . . . are

satisfied.”); see Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (9th Cir. 2011) (the district

court may examine the merits of the underlying claim “only inasmuch as it must determine whether

common questions exist; not to determine whether class members could actually prevail on the

merits of their claims. To hold otherwise would turn class certification into a mini-trial.”) (citations

omitted).

DISCUSSION

Plaintiff asserts that the proposed class satisfies the elements of Rule 23(a) and 23(b)(3).

(See Joint Brief at 26-27, 28-29, 30-35 & 47-49). For the purposes of this Motion, defendant does

7


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

not contest numerosity, (see id. at 47 n. 12), but argues that plaintiff fails to meet the remaining

requirements of Rule 23(a), (see id. at 27-28, 29-30 & 48), as well as the requirements of Rule

23(b)(3). (See id. at 35-40, 44-45 & 46-47). Although the parties disagree on almost all of the

factors, they spend the vast majority of their briefing on the overlapping requirements of

commonality under Rule 23(a)(2) and predominance under Rule 23(b)(3). This Order will

therefore focus on these issues,9 and for the reasons stated herein, the court finds that plaintiff has

not fulfilled the predominance requirement of Rule 23(b)(3).

The commonality requirement is satisfied if “there are common questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires plaintiff to demonstrate that

her claims “depend upon a common contention . . . [whose] truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551;

see Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (The

commonality requirement demands that “class members’ situations share a common issue of law

or fact, and are sufficiently parallel to insure a vigorous and full presentation of all claims for

relief.”) (internal quotation marks omitted). “The plaintiff must demonstrate the capacity of

classwide proceedings to generate common answers to common questions of law or fact that are

apt to drive the resolution of the litigation.” Mazza, 666 F.3d at 588 (internal quotation marks

omitted). “This does not, however, mean that every question of law or fact must be common to

the class; all that Rule 23(a)(2) requires is a single significant question of law or fact.” Abdullah

v. U.S. Security Associates, Inc. 731 F.3d 952, 957 (9th Cir. 2013), cert. denied, 135 S.Ct. 53

(2014) (emphasis and internal quotation marks omitted); see Mazza, 666 F.3d at 589

(characterizing commonality as a “limited burden[,]” stating that it “only requires a single significant

question of law or fact[,]” and concluding that it remains a distinct inquiry from the predominance

9 When a court finds that a putative class has not satisfied one of the Rule 23 requirements,it need not address all of the other factors. See, e.g., In re High-Tech Employee Antitrust Litig.,289 F.R.D. 555, 563-64 (N.D. Cal. 2013) (finding that the plaintiffs have not fulfilled therequirements of Rule 23(b)(3), focusing “exclusively on these disputes” and not addressing theother requirements); In re Wells Fargo Home Mortg. Overtime Pay Litig., 268 F.R.D. 604, 613(N.D. Cal. 2010) (“Because the court holds that plaintiff has not satisfied the predominancerequirement, it need not address the superiority requirement.”).

8


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

issues raised under Rule 23(b)(3)). Proof of commonality under Rule 23(a) is “less rigorous” than

the related preponderance standard under Rule 23(b)(3). See Mazza, 666 F.3d at 589; Hanlon

v. Chrysler Corp., 150 F.3d 1011, 1019-20 (9th Cir. 1998). “The existence of shared legal issues

with divergent factual predicates is sufficient, as is a common core of salient facts coupled with

disparate legal remedies within the class.” Hanlon, 150 F.3d at 1019.

“Though there is substantial overlap between [the Rule 23(a)(2) commonality test and the

Rule 23(b)(3) predominance test], the [Rule] 23(b)(3) test is far more demanding[.]” Wolin, 617

F.3d at 1172 (internal quotation marks omitted). Broadly speaking, “[t]he Rule 23(b)(3)

predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct.

2231, 2249 (1997). The “focus is on the relationship between the common and individual issues.”

In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir. 2009) (internal

quotation marks omitted). The analysis requires a close examination of “the legal or factual

questions that qualify each class member’s case as a genuine controversy” in order to determine

“whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”

Amchem Prods., 521 U.S. at 623, 117 S.Ct. at 2249. “[I]f the main issues in a case require the

separate adjudication of each class member’s individual claim or defense, a Rule 23(b)(3) action

would be inappropriate.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1189 (9th Cir.

2001) (internal quotation marks omitted).

Although there is no mathematical or mechanical test for evaluating predominance, Rule

23(b)(3) is generally met “[w]hen common questions present a significant aspect of the case and

they can be resolved for all members of the class in a single adjudication[.]” Hanlon, 150 F.3d at

1022. In such cases, “there is clear justification for handling the dispute on a representative rather

than on an individual basis.” Id. (citation omitted). However, “[i]f, to make a prima facie showing

on a given question, the members of a proposed class will need to present evidence that varies

from member to member, then it is an individual question. If the same evidence will suffice for

each member to make a prima facie showing, then it becomes a common question.” High-Tech,

9


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

289 F.R.D. at 564 (internal quotation marks omitted) (citing Messner v. Northshore Univ.

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).

“Considering whether questions of law or fact common to class members predominate

begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc.

v. Halliburton Co., 131 S.Ct. 2179, 2184 (2011) (internal quotation marks omitted); see also Berger

v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (“Each potential class must be

analyzed on its own merits, with consideration given to the elements of the claim at stake.”). In

this case, the crux of plaintiff’s claim is that he was misclassified as an exempt employee and that

he should therefore receive compensation for overtime hours worked and missed meal and rest

breaks. (See Complaint at ¶ 19). In response, defendant asserts that two separate exemptions

from overtime and meal and rest break requirements – the administrative exemption and the

managerial exemption – apply to APCs. (See, e.g., Joint Brief at 44). The court addresses these

arguments below.

I. INDUSTRIAL WELFARE COMMISSION WAGE ORDER 7-2001.

The parties agree that California Industrial Wage Commission (“IWC”) Wage Order 7-2001,

8 C.C.R. § 11070 (the “Wage Order”), applies in this case. (See Joint Brief at 23). The Wage

Order sets out various requirements that apply in the mercantile industry for overtime, minimum

wages, employer records, and meal and rest breaks, among others. See 8 C.C.R. § 11070.

However, the Wage Order states that it “shall not apply to persons employed in administrative,

executive,10 or professional capacities.” Id. at § 11070(1)(A). The court first discusses the

requirements unique to the two exemptions at issue here (administrative and managerial) and then

addresses the requirements common to both exemptions regarding time spent on exempt duties

and exercise of independent judgment and discretion. “The latter requirement is arguably the

single most important issue, because it is required for every exemption. In other words, if an

employee does not exercise independent judgment and discretion, then that employee is not

10 This exemption is referred to throughout the parties’ briefing, and in this order, as the“managerial” exemption. (See, e.g., Joint Brief at 6 & 13).

10


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

exempt from overtime, regardless of whether other exemption requirements may be satisfied.”

Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 596-97 (E.D. Cal. 2008).

The requirements unique to the managerial exemption include: (1) “duties and

responsibilities involv[ing] the management of the enterprise” or a recognized subdivision thereof;

(2) “customarily and regularly direct[ing] the work of two or more other employees[;]” and (3) “the

authority to hire or fire other employees or [make] suggestions and recommendations as to the

hiring or firing . . . [that] will be given particular weight[.]” 8 C.C.R. §§ 11070(1)(A)(1)(a)-(c).

Generally, “management” includes activities such as training employees, planning the work,

determining the techniques to be used, providing for the safety and security of the employees or

property, and monitoring or implementing legal compliance measures. See 29 C.F.R. § 541.102.11

In addition, in determining whether personnel recommendations are given “particular weight,”

factors to be considered include, but are not limited to, “the frequency with which such suggestions

and recommendations are made or requested[] and the frequency with which the employee’s

suggestions and recommendations are relied upon.” See id. at § 541.105.

The requirements unique to the administrative exemption include: (1) “[t]he performance

of . . . non-manual work directly related to management policies or general business operations

of [the] employer or [the] employer’s customers;” and (2) working “along specialized or technical

lines requiring training, experience, or knowledge; or . . . [on] special assignments and tasks”

under “only general supervision[.]” 8 C.C.R. §§ 11070(1)(A)(2)(a)(i) & 11070(1)(A)(2)(d)-(e). With

respect to the first requirement, the phrase “directly related to management policies or general

business operations” includes, but is not limited to, “work in functional areas such as . . . quality

control[,] . . . safety and health[,] . . . legal and regulatory compliance[,] and similar activities.” 29

C.F.R. § 541.201. Importantly, “[o]rdinary inspection work generally does not meet the duties

requirements for the administrative exemption.” Id. at § 541.203(g). Such employees typically

“perform specialized work along standardized lines involving well-established techniques and

11 The Wage Order incorporates into the interpretation of the managerial and administrativeexemptions the then-current federal regulations interpreting the Fair Labor Standards Act, 29U.S.C. §§ 201 et seq. See 8 C.C.R. §§ 11070(1)(A)(1)(e) & 11070(1)(A)(2)(f).

11


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

procedures which may have been catalogued and described in manuals or other sources. . . .

They have some leeway in the performance of their work but only within closely prescribed limits.”

(Id.).

The final requirements, which apply to both exemptions, are that the employee must be

“primarily engaged” in duties that meet the test of the exemption, and the employee must

“customarily and regularly exercise[] discretion and independent judgment[.]” 8 C.C.R. §§

11070(1)(A)(1)(d), (e) & 11070(1)(A)(2)(b) & (f). The “discretion and independent judgment”

requirement “must be applied in the light of all the facts involved in the particular employment

situation in which the question arises.” See 29 C.F.R. § 541.202(b). Factors to be considered

include but are not limited to:

[W]hether the employee performs work that affects business operations to a

substantial degree, even if the employee’s assignments are related to

operation of a particular segment of the business; whether the employee has

authority to commit the employer in matters that have significant financial

impact; whether the employee has authority to waive or deviate from

established policies and procedures without prior approval; . . . whether the

employee investigates and resolves matters of significance on behalf of

management; and whether the employee represents the company in

handling complaints . . . or resolving grievances.

Id. Further, an exempt employee must have the “authority to make an independent choice, free

from immediate direction or supervision[,]” irrespective of whether it may “reviewed at a higher

level.” Id. at § 541.202(c). The power to make independent recommendations may suffice to

meet this requirement. Id. Finally, it “must be more than the use of skill in applying well-

established techniques, procedures or specific standards described in manuals or other sources.”

Id. at § 541.202(e).

The last common requirement under both exemptions is that the employee be “primarily

engaged” in duties that meet the test of the exemption. Factors to consider in this inquiry include,

but are not limited to, “the relative importance of the exempt duties as compared with other types

12


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of duties; the amount of time spent performing exempt work; [and] the employee’s relative freedom

from direct supervision[.]” 29 C.F.R. § 541.700(a). “[E]mployees who spend more than 50 percent

of their time performing exempt work will generally satisfy the primary duty requirement. Time

alone, however, is not the sole test[.]” Id. at § 541.700(b).

II. COMMONALITY AND PREDOMINANCE UNDER THE EXEMPTIONS.

In evaluating commonality and predominance under the exemptions at issue, the court must

ask whether the work experiences of the APCs are so similar that determining whether the

managerial and administrative exemptions’ conditions have been met on a class-wide basis “would

further the goals of efficiency and judicial economy[,]” or whether those experiences are so distinct

that determining whether the exemptions apply “would require an individualized inquiry into the

manner in which each [APC] actually carried out his or her work[.]” See Vinole v. Countrywide

Home Loans, Inc., 571 F.3d 935, 944 & 946 (9th Cir. 2009).

A. Existence of Common Questions.

As noted above, commonality requires that the class members’ claims “depend upon a

common contention” that is “of such a nature that it is capable of classwide resolution – which

means that determination of its truth or falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551. Put another way, commonality

focuses whether the answers to common questions are “apt to drive the resolution of the

litigation.” Id.

Here, although some members of the putative class have had divergent work experiences,

plaintiffs are all identically classified employees of the same company, sharing the same job title

and assigned roughly similar job responsibilities, and they all raise identical legal questions, i.e.,

whether they were misclassified as exempt, and if so, whether they were denied overtime pay and

meal and rest breaks to which they are entitled to under state law. Further, there is a common

question that is of primary importance in this case: “[d]o APCs perform a uniform and finite set of

job duties?” (See Joint Brief at 27). As plaintiff notes, (see id. at 28), this question is of critical

importance in a misclassification class action. See Vinole, 571 F.3d at 947 (stating that courts

“focus[] on whether [there are] standardized hierarch[ies], standardized corporate policies and

13


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

procedures governing employees, [and] uniform training programs”). Plaintiff has presented

common evidence – e.g., the APC Routines, National Priorities, and Standard Operating

Procedures– demonstrating that Wal-Mart expects its APCs to perform the same types of tasks

throughout all California stores, regardless of size, type, or location. (See APC Routines at

PA502-508; National Priorities at PA510-12; Standard Operating Procedures at PA514-602). The

answer to the question of whether the APCs follow these policies and guidelines will drive the

resolution of the litigation. After all, whether the other essential questions in this case (e.g., do

APC job duties require independent judgment, are APCs primarily engaged in exempt duties) are

susceptible to common proof hinges upon the answer to that first common question. Under the

circumstances, the shared legal issues, coupled with a common core of salient facts, are sufficient

to establish commonality in this case.

B. Whether Common Questions Predominate.

“When the claim is that an employer's policy and practices violated labor law, the key

question for class certification is whether there is a consistent employer practice that could be a

basis for consistent liability.” Kamar v. Radio Shack Corp., 254 F.R.D. 387, 399 (C.D. Cal. 2008).

Classes are often certified where “an employer's uniform policy . . . is uniformly implemented,

since in that situation predominance is easily established.” Id. But such uniformity is not required

to satisfy the "predominance" prong. “[T]he existence of certain individualized or deviating facts

will not preclude certification if most class members were subjected to a company policy in a way

that gives rise to consistent liability or lack thereof.” Id.

In undertaking the commonality and predominance inquiries in misclassification cases, the

court considers a rough hierarchy of certain types of evidence. At the bottom are company

policies declaring that a certain job title is uniformly exempt or non-exempt. See In re Wells Fargo

Home Mortgage Overtime Pay Litig., 571 F.3d at 957 & 959 (stating that whether “such a policy

is in place or not, courts must still ask where the individual employees actually spent their time[,]”

and finding that a district court abused its discretion when it relied on an exemption policy “to the

near exclusion of other factors relevant to the predominance inquiry”). More useful to courts are

“comprehensive uniform policies detailing the job duties and responsibilities of employees[.]” Id.

14


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

at 958. These carry more weight because “centralized rules, to the extent they reflect the realities

of the workplace, suggest a uniformity among employees that is susceptible to common proof.”

Id. at 958-59; see Vinole, 571 F.3d at 947 (describing the importance of “companywide policies

governing how employees spend their time”) (internal quotation marks omitted). Equally important

is evidence that bears on “whether class members are actually performing similar duties[,]” Wells

Fargo, 571 F.3d at 959 (quoting Campbell, 253 F.R.D. at 603), because such “uniformity in work

duties and experiences . . . diminish[es] the need for individualized inquiry.” Vinole, 571 F.3d at

947 (internal quotation marks omitted).

The Ninth Circuit’s predominance methodology in misclassification cases – focusing on

what employees actually do – is consistent with California’s approach to analyzing its managerial

and administrative exemptions. See Abdullah, 731 F.3d at 957 (Where plaintiff’s claims arise

under state law, the court must “look[] to state law to determine whether the plaintiff[‘s] claims –

and [defendant’s] affirmative defenses – can yield a common answer that is ‘apt to drive the

resolution of the litigation.’”) (quoting Dukes, 131 S.Ct. at 2551); Erica P. John Fund, 131 S.Ct. at

2184 (“Considering whether questions of law or fact common to class members predominate

begins . . . with the elements of the underlying cause of action.”) (internal quotation marks

omitted). California regulations mandate examination of “[t]he work actually performed by the

employee during the course of the workweek. . . and the amount of time the employee spends on

such work, together with the employer’s realistic expectations and the realistic requirements of the

job[.]” See 8 C.C.R. §§ 11070(1)(A)(1)(e) & 11070(1)(A)(2)(f). The court now turns to the

elements of the exemptions at issue, addressing the issues common to both exemptions last.

1. Managerial Exemption.

The first factor is whether the employee’s “duties and responsibilities involve the

management of the enterprise in which he/she is employed or of a customarily recognized

department or subdivision thereof[.]” 8 C.C.R. § 11070(1)(A)(1)(a). As described above, see

supra at § I., “management” includes training employees, providing for safety and security, and

monitoring or implementing legal compliance measures. See 29 C.F.R. § 541.102. Here, the

record indicates that all Wal-Mart APCs perform work designed to improve the safety and security

15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of the stores, and APCs are responsible for legal compliance related to safety and security. Their

“essential functions” include monitoring compliance with policies as they pertain to assets, food,

health, and safety, and implementing and managing processes to ensure that safety, asset

protection, and compliance goals are met. (See APC Job Description at PA494). Regardless of

any differences that may exist in the performance of an APC’s job duties, it is clear from these and

other documents, (see e.g., APC Routines at PA503-508, and National Priorities at PA510-512),

that an APC’s responsibilities are similar across California stores. Whether such responsibilities

are sufficient to satisfy the first condition is a question common to the class.

The second factor is whether employees “customarily and regularly direct[] the work of two

or more other employees[.]” 8 C.C.R. § 11070(1)(A)(1)(b). The record in this case shows some

variation among APCs on this factor. APCs supervise “anywhere from one to twelve or more

hourly-paid [APAs].” (See Dabney Decl. at PA24 & 25) (“Some stores have few members on the

AP team, whereas others may have as many as fourteen[.]”). That certain APCs supervise only

one APA may mean that some putative class members do not “customarily and regularly direct[]

the work of two or more other employees[.]” See 8 C.C.R. § 11070(1)(A)(1)(b). At least one APC

indicated that there were no APAs at his store for approximately two years. (See Def. App’x, Exh.

Q, Deposition of Randall Howdeshell (“Howdeshell Depo.”), at DE461). Further, as of 2012, some

APCs also supervise APEAs within their stores. (See Dabney Decl. at PA24). It is possible, then,

that some APCs went from supervising one employee (an APA) to two employees (an additional

APEA) in 2012, and their exemption status could have changed over the course of the class

period. Others may not have APEAs in their stores at all and may have continued supervising only

one employee. (See, e.g., Plaintiff App’x, Exh. 7.P, Deposition of Bobbie Jo Lewis, at PA425)

(comparing APCs that have “five people walking [the] sales floor” with others in a “store [that] only

has one person”).

For example, even plaintiff’s experience with respect to this factor was not uniform over the

course of his employment with defendant. Regional Asset Protection Manager, Jeff Coburn

(“Coburn”), stated that when plaintiff was an APC in one store, he had “anywhere between . . . one

and three APAs[.]” (See Coburn Depo. at PA249). However, at another store “he had any where

16


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

between two and four APAs[.]” (Id. at PA249-50). According to Coburn, there were “times in

which [plaintiff] may have two. And then there was turnover, which means he may have had one.

He may have rehired. And then there’s times when he might have more than one.” (Id. at 250).

On the other hand, one APC stated that he had “approximately four – four to six” APAs working

under him. (See Plaintiff App’x, Exh. 7.H., Deposition of Jim Galbreath (“Galbreath Depo.”), at

PA290). Another “had three associates” (see id., Exh. 7.I., Deposition of Henry Garcia (“Garcia

Depo.”), at PA321) in one store, and yet another had between six and nine. (See id., Exh. 7.K.,

Deposition of Estela Gonzalez (“E. Gonzalez Depo.”), at PA361). Given the diversity in APC

experiences, determining whether an APC “customarily and regularly directed the work of two or

more APAs sufficient to satisfy the second factor of the managerial exemption would require an

individualized factual inquiry that does not lend itself to common proof on a class-wide basis.

The third factor is whether the employee has the authority to hire and fire, or whether the

employee’s suggestions and recommendations as to hiring, firing, and advancement will be given

particular weight. 8 C.C.R. § 11070(1)(A)(1)(c). The record evinces significant variation among

APCs on this factor as well. Many APCs stated that they do not, or did not, have the authority to

hire or fire employees[.]” (See, e.g., Plaintiff App’x, Exh. 6, Declaration of Janet Arvin-Sellers, at

PA32; id., Declaration of Penny Autry (“Autry Decl.”), at PA36; id., Declaration of Henry Garcia,

at PA80; id., Declaration of Kahala Lincoln, at PA122; id., Declaration of Penny Sampier, at

PA169). Others, however, stated that they did have such authority. (See, e.g., Def. App’x, Exh.

H, Deposition of April Banks, at DE292 (Q: “And you hire APAs?” A: “Yes.”); id. at 300-01 (Q: “For

the APA that was terminated for the integrity issue, were you the person to terminate them in

person?” A: “Yes.”); Def. App’x, Exh. O, Deposition of David Gomez, at DE429 (describing the

“one-on-one conversation with whoever [he] hired” and stating that he did not often “fire[]

somebody”); Howdeshell Depo. at DE461-62 (describing his interviewing and then recommending

an APA who was ultimately hired); Def. App’x, Exh. D-13, Declaration of Steve Oliver, at DE143

(“I am responsible for [APA] hiring, direction, and when necessary coaching and firing.”)). Whether

this variation is the result of APCs interpreting their job responsibilities differently or a difference

in the way store managers delegate hiring and firing responsibilities, the court is persuaded that

17


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

this factor, too, requires an individualized factual inquiry and is not susceptible to common proof

on a class-wide basis.

For these reasons, the court finds that the requirements unique to the managerial

exemption – setting aside, for the moment, the requirement of discretion and independent

judgment – do not lend themselves to common proof on a class-wide basis; individual inquiries

predominate over common ones.

2. Administrative Exemption.

The first factor under the administrative exemption is the performance of work “directly

related to management policies or general business operations of [the] employer[.]” See 8 C.C.R.

§ 11070(1)(A)(2)(a)(i). As described above, see supra at § I., this may involve work in areas such

as quality control, safety and health, and legal compliance. See 29 C.F.R. § 541.201. However,

“[o]rdinary inspection work generally does not meet the duties requirements for the administrative

exemption.” Id. at § 541.203(g).

Here, the extent to which employees perform “ordinary inspection work” as opposed to

administrative work appears to vary by APC. Many APCs stated that one of their primary tasks

included conducting quality control audits. (See, e.g., Plaintiff App’x, Exh. 6, Declaration of

Michael Perkins, at PA152; Autry Decl. at PA35). Many described this as “ordinary inspection

work” that only required filling out checklists. Penny Autry, for example, described the checklists

“that outlined the steps and actions needed to properly audit a department. [She] would be

instructed by [her] supervisor to conduct an audit of a department . . . and would follow the

checklist in order to develop a report[.]” (Autry Decl. at PA36). Another APC described audits,

stating that “[t]he answer to each question on the checklist is either ‘Yes’ or ‘No[.]’” (See Plaintiff

App’x, Exh. 6, Declaration of April Banks, at PA40). If most California APC performed their work

this way, the question of whether they perform work directly related to management or general

business operations may be answerable with common proof.

However, many other APCs stated that they worked more on quality, safety and health, and

compliance policy, as opposed – or in addition – to ordinary inspection work. As APC Tammy

Dias explained, “[a]lthough audit completion required me to confirm whether certain processes

18


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

were conducted properly, the trick is not in simply checking a box with a ‘yes’ or a ‘no.’ Rather,

the importance in the [APC] role . . . is in the ability to ultimately change a ‘no’ one week into a

successful ‘yes’ in a later week.” (Def. App’x, Exh. D-4, Declaration of Tammy Dias (“Dias Decl.”),

at DE73). Another APC described her deviating from the “more structured” audit checklists: “the

Routines aren’t always indicative of what we actually need to do in our individual stores and they

don’t account for the unique differences in the stores. If something else takes precedence, I focus

on it. For example, when an associate comes up to me with a problem or a question, I will

address it right away even though the Routines suggest that I schedule a follow-up with associates

at a later time.” (See id., Exh. D-5, Declaration of Leticia Euley (“Euley Decl.”), at DE80). Alex

Gonzalez stated that he has “set tasks on a daily basis,” but he has “to have independence to

adjust to the situation in the stores. [His] daily tasks change based on what problems or issues

the store is facing that day[.]” (Id., Exh. D-6, Declaration of Alex Gonzalez (“A. Gonzalez Decl.”),

at DE 85). He added that while the National Priorities “may help to expose a problem, . . . it is up

to me to identify the root cause of the problem [and] determine the best way to fix or correct the

problem[.]” (Id. at DE86). Another APC described using the Routines “as a guideline, but they

cannot and do not account for the variation in [her] day or the variations amongst the needs of the

different stores.” (Def. App’x, Exh. D-9, Declaration of Patricia Klingenbeck Kaiser (“Kaiser Decl.”),

at DE108); (see also id., Exh. D-17, Declaration of Lacy Tennison, at DE169) (“When I find a

problem impacting shrink or safety, what I do next depends on the circumstances. I make that

call.”).

Finally, other APCs described the way that some work that may appear to be ordinary

inspection work may actually be supervisory work, furthering the organization’s goals regarding

safety and security. For example, Henry Garcia explains that he supervises APAs “by walking the

floor” to make sure “they were always on the job doing the right thing and not loafing around.”

(See Garcia Depo. at PA320). Estela Gonzalez stated that sometimes she is managing

employees even when it appears that she is just “cleaning up a spill” because she is “leading by

19


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

example” and showing them how to handle certain situations.12 (See E. Gonzalez Depo. at

PA373-75).

Taken together, the evidence described above suggests that while some APCs may

perform much of their work adhering strictly to policies and guidelines, others may not. Some

APCs work pursuant to procedures that have been “catalogued and described in manuals and

other sources” and only exercise leeway within “closely prescribed limits[,]” see 29 C.F.R. §

541.203(g), and others may approach problem-solving and leadership with respect to business

operations differently. Given this diversity of experience, it is unlikely that the question of whether

APCs perform work related to management and business operations can be answered using

common proof.

The second unique factor is whether the employee performs “work along specialized or

technical lines” or “special assignments and tasks” under “only general supervision,” as opposed

to direct and specific supervision by superiors. See 8 C.C.R. §§ 11070(1)(A)(2)(d)-(e). The record

indicates that all APCs, regardless of the store in which they work, are subject to supervision by

MAPMs, who are not on site at the stores. (See Dabney Decl. at PA24 (MAPMs are “responsible

for overseeing between 6-19 stores[,]” and APCs are “responsible for managing the [asset

protection] program at the store level”)). They are also supervised by on-site store managers. For

this reason, whether the condition is met will be informed by common proof. But this level of

supervision is not necessarily enough to determine whether the general supervision condition

applies. It appears from the record that the specificity of supervision varies from APC to APC,

likely as a result of different store management styles. For example, Coburn stated that plaintiff

participated in management meetings regarding the store’s strategic business plans “at least once

12 Plaintiff argues that California law is clear that job duties are “either exempt or non-exemptand multitasking . . . is not permitted.” (See Reply at 13 n. 25). Plaintiff cites Heyen v. SafewayInc., 216 Cal.App.4th 795 (2003) in support of his argument that APCs cannot be “managing”under the California Labor Code when performing non-exempt tasks. (See Reply at 13). Heyen,however, merely states that “the trier of fact must categorize tasks as either ‘exempt’ or‘nonexempt’ based on the purpose for which [the employee] undertook them.” 216 Cal.App.4that 826. Therefore, if APCs walk the floor or clean up a spill for the purpose of instructing theirsubordinates, they may be exempt under California law.

20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

per month.” (See Coburn Depo. at PA255). APC Henry Garcia stated that he “work[ed] very

closely with every manager – with the store manager and every assistant manager that he had.”

(See Garcia Depo. at PA320). Another APC, Estela Gonzalez, stated that she tried “to meet with

[her store manager] at least once a week . . . for about an hour. If something [came] up . . . during

the day, maybe five, ten minutes real quick, but at least one hour to discuss any exceptions,

anything that I need his support on, as far as from his management team.” (E. Gonzalez Depo.

at PA373). Antonio Barragan “meet[s] with the store manager one-on-one almost every day.

[They] have a scheduled meeting set each day[.]” (See Def. App’x, Exh. D-2, Declaration of

Antonio Barragan (“Barragan Decl.”), at DE59). Patricia Klingenbeck Kaiser stated that over the

course of her time as an APC, she started to “work more closely with store management and [is]

considered a member of the management team.” (See Kaiser Decl. at DE110). In addition, she

takes on many duties of the MAPM while her MAPM is on a leave of absence. (See id.). In some

cases, it appears that MAPMs provided hands-off supervision. (See, e.g., Def. App’x, Exh. D-1,

Declaration of Kristel Almares (“Almares Decl.”), at DE51-52) (“My MAPM trusts me to make

management decisions that impact my store on my own, although I will often keep her apprised

of new changes or initiatives . . . No one is looking over my shoulder[.]”). In others, however,

APCs may not have had very much control over initiatives in their stores. (See, e.g., Galbreath

Depo. at PA298) (describing implementation of solutions to problems identified in audits, which

“requires the approval of the MAPM or store manager”).

This evidence suggests that the extent of supervision under which each APC operates can

differ by store and store manager, by experience level, by MAPM, and over time. The ultimate

determination of whether an APC was subject to general or specific supervision depends on both

common questions of fact and law (resulting from uniform corporate supervisory structure) and

on individual questions of fact (resulting from individual circumstances and experiences) and the

court is not persuaded that the former predominates over the latter. For these reasons, the court

finds that the requirements unique to the administrative exemption – again, setting aside the

requirement of discretion and independent judgment – do not lend themselves to common proof

on a class-wide basis; individual inquiries predominate.

21


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3. Factors Common to Both Exemptions.

The court will address the requirements common to both exemptions, which are whether

the employees at issue “customarily and regularly exercise[] discretion and independent

judgment[,]” and whether they are “primarily engaged” in the performance of exempt duties. See

8 C.C.R. §§ 11070(1)(A)(1)(d)-(e) & 11070(1)(A)(2)(b), (f).

Similar to some of the factors discussed above, whether or not California APCs regularly

exercise independent judgment and discretion appears to depend on the APC. Plaintiff put forth

many declarations in which APCs say that they cannot, and do not, exercise any discretion in the

performance of their regular duties. (See, e.g., Plaintiff App’x, Exh. 6, Declaration of Debora

Cardenas, at PA44 (describing defendant’s shoplifter apprehension policy and stating that it was

“a detailed policy that specifically outlines what [APCs] can and cannot do once they have

identified a shoplifter. [She] played no role in preparing the . . . policy, did not have any influence

over what goes into the policy, and was not permitted to deviate from the policy.”); id., Exh. 7.A.,

Deposition of Kristel Ariana Almares, at PA201 (testifying that she did not “have discretion to

deviate from the national priorities”); id., Exh. 7.J., Deposition of David Gomez, at PA355 (agreeing

that “[t]here’s no discretion to just simply not follow” the shoplifter apprehension policy); id., Exh.

7.M., Deposition of Patricia Klingenbeck Kaiser, at PA397-98 (testifying that she did not deviate

from policies and procedures because it was her “job to follow policies and procedures” and she

could have been disciplined or terminated if she failed to do so.)).

Defendant, on the other hand, has presented evidence that differs from that of plaintiff in

two primary ways: first, some evidence indicates that even if APCs did not deviate from these

policies and guidelines, carrying out the tasks enumerated therein involved independent judgment

and discretion. Second, other evidence suggests that APCs did, in fact, deviate from the policies

and guidelines and had discretion to implement their own safety and security policies in their

particular stores. To the first point, for example, one APC stated that “[w]hen an answer on the

[asset protection a]ssessment is a ‘no,’ [she uses her] judgment to identify why the answer is ‘no’

and how to correct it[.]” (Gutierrez Decl. at DE101). To the second point, she offered a number

of examples of initiatives she began in her store, including incentivizing spill cleanup with iPod

22


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

giveaways, holding weekly safety meetings and encouraging employees to discuss the topics with

a “card” system, and rewarding associates that identify mislabeled products. (See id. at DE102).

Similarly, Alex Gonzalez initiated “safety sweep announcements” in his store because there were

a lot of slip and fall accidents. (A. Gonzalez Decl. at DE86). Tammy Dias created “cheesy

posters” that she placed throughout the store to encourage safety awareness, which were updated

after each accident-free week. (See Dias Decl. at DE74). Antonio Barragan created an alternative

scheduling system for the APAs that he supervises, because he “think[s] APAs need recovery

time.” (See Barragan Decl. at DE62). Melissa Monroy “implemented changes in training and

development in critical shrink areas of the store and with Department Managers[.]” (See Def.

App’x, Exh. D-11, Declaration of Melissa Monroy (“Monroy Decl.”), at DE122). She also

implemented a “[p]arking [l]ot [r]eceipt program” and created and implemented a color-coded card

program to incentivize workplace safety. (See id.). Another store contains a McDonalds, and

Michelle Paulos implemented safety initiatives to address the safety concerns that result from an

in-store restaurant. (See Def. App’x, D-14, Declaration of Michelle Paulos (“Paulos Decl.”), at

DE151). There are many such examples in the record, all of which illustrate that whether an

individual APC exercises judgment and discretion cannot be determined merely by reference to

uniform policies or procedures.13 Because an APC’s daily work activities are not uniform, the

questions that need to be asked to determine whether plaintiffs meet this factor are individualized.

Cf. Campbell, 287 F.R.D. at 624 (certifying a class and stating that nothing in the putative class

members’ declarations led it to believe “that some Associates customarily exercise[d] discretion

and independent judgment, while others d[id] not”) (emphasis omitted).

Similarly, because the evidence indicates that a California APCs’ work experiences are not

completely uniform, whether they are primarily engaged in exempt duties cannot be answered with

13 This is so even though defendant’s National Priorities may identify the red flags andexceptions that APCs must address. (See Reply at 10). Plaintiff points out instances in whichAPCs state that they merely follow defendant’s correction and shrink-reduction plans, stating thatWal-Mart’s “self-serving declarations” do not reflect the true realities of the workplace. (See id.at 12). Plaintiff provides no basis to reject the declarations of defendant’s witnesses. (See,generally, Joint Brief at 10-12 & 30-35; Reply). Accordingly, the court interprets the evidence asreflecting real differences in the daily work activities of APCs in California.

23


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

common proof. As mentioned previously, certain APCs supervise only one APA, whereas others

supervise more than ten. As a result, the amount of time they spend supervising subordinates

varies dramatically. (See, e.g., Paulos Decl. at DE149 (“When I started as an [APC] I had no

APAs under me. Within the first year, one APA started reporting to me. Now, four APAs report

directly to me.”); (Gutierrez Decl. at DE99) (stating that she has 11 associates that report directly

to her, and she spends “a significant amount of time coaching and managing” them). Letitia Euley,

for example, has 11 APAs who report to her, and she also supervises other associates throughout

the store, “including associates in [her] back offices. Just to spend time with each of [her]

subordinates and address their every-day issues” takes a lot of her time. (See Euley Decl. at

DE78). In another store, however, she supervised two APAs and she had much more time to

focus on red flags that came up on various reports. (See id.).

Additionally, the circumstances in and around certain stores may present unique concerns

that require an APC’s attention. For example, Kristin Gutierrez works in a store that has a

“problem with accidents,” so the accident files take up a significant amount of her time. (See

Gutierrez Decl. at DE101). Kristel Almares stated that her store “is currently going through

supercenter expansion, so [she has] been conducting and supervising additional audits that allow

[her] to monitor the construction crews and other vendors in the building.” (See Almares Decl. at

DE53). Melissa Monroy works in a high-theft store, so she spends a lot of her time “constantly

changing the security controls to adapt to the trends and tactics of the thieves.” (Monroy Decl. at

DE126) (further explaining that she and her team must be particularly innovative “[b]ecause of the

way [their] store is structured”).

These duties are not sufficiently similar such that the question of “primary engagement” can

be answered on a classwide basis. It is not clear from the evidence that every California APC

spends a majority of his or her time doing the same tasks as other APCs do. Even if an APC

spends a majority of his or her time on the APC Routine and National Priority tasks, it is not clear

that these are performed in a uniform way. Sometimes digging deeper into exceptions and red

flags involves a great deal of APC discretion and independent judgment and very little supervision

by store managers and MAPMs, and other times this work involves little more than using

24


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

defendant’s set resources and asking the questions delineated in its pre-written checklists. As a

result, the salient question of whether an APC is primarily engaged in tasks meeting the test for

the exemptions will likely require resolving individual questions of fact.

Plaintiff asserts that because the APC Routine and National Priorities are the same at every

store, APC job duties are sufficiently uniform such that an APC can go from one store to another

without changing his or her approach or daily tasks. (See Joint Brief at 31-35); (Plaintiff’s

Summary of Evidence ISO Plaintiff’s Motion for Class Certification at 16-24) (providing extensive

citations to testimonial evidence regarding uniform policies and procedures being followed in

California stores). According to plaintiff, California APCs perform their jobs in a sufficiently similar

manner such that common issues and questions predominate. (See Joint Brief at 31-35).

However, the evidence in the record does not support plaintiff’s assertions. Numerous

APCs describe differences in the performance of their duties due to the type of stores in which

they work, (see, e.g., Almares Decl. at DE49) (“I . . . plan to partner with an APC at a supercenter

with a grocery department so I can learn the intricacies of that area.”), the hours they are open,

(see, e.g., Gutierrez Decl. at DE103) (describing the challenges presented by the fact, among

others, that her store is open 24 hours), the metro or urban area in which they are located, (see,

e.g., A. Gonzalez Decl. at DE87) (describing the affluent community but unique issues presented

by proximity to major highways), and the clientele they serve. (See, e.g., Gutierrez Decl. at

DE104) (describing the difference in her duties in the first and last two weeks of each month

because of the number of customers that receive government benefits). As one APC stated, the

APC’s “function is generally the same but [an APC’s] specific focus or responsibilities vary

depending on the needs of the store at the time and what is happening on a particular day or

season.” (Def. App’x, Exh. D-19, Declaration of Christina White, at DE182).

In sum, the record is clear that all APCs receive very similar training (see, e.g., APC

Training Plan at DE656-767) and that the overall job expectations are roughly identical no matter

what California store the APC is being hired into. (See, e.g., APC Job Description at PA491-501;

APC Routines at PA503-08). These showings, in addition to the fact that defendant classifies all

APCs as uniformly exempt, suggest a uniform set of expectations for APCs on the part of

25


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

defendant and a level of commonality across the putative class. But the touchstone of an

exemption analysis is the reality of the workplace and the way in which employees actually spend

their time, and the record before the court suggests that determining whether an APC is primarily

engaged in activities meeting the tests for an exemption is an individual question, not one that can

be easily resolved through common proof.14 This does not mean that common questions cannot

predominate in misclassification cases; indeed, in a case in which employee work activities are

more uniform than they are among California APCs, an examination of how employees actually

spend their time could be accomplished using common proof. See, e.g. Kamar, 254 F.R.D. at 399

(“[T]he existence of certain individualized or deviating facts will not preclude certification if most

class members were subjected to a company policy in a way that gives rise to consistent liability

or lack thereof.”). The court has merely found that here, common proof would likely be insufficient

to establish the presence or absence of nearly all of the exemption conditions. Because the merits

of this case cannot be resolved without significant individual inquiry, the court finds that common

questions do not predominate.

CONCLUSION

Based on the foregoing, IT IS ORDERED THAT:

1. Plaintiff’s Renewed Motion for Class Certification (Document No. 78) is denied

2. Defendant’s Renewed Motion to Strike Declarations Filed Contemporaneously with the

Parties’ Joint Brief Re: Class Certification And Submitted by Plaintiff in Support of Plaintiff’s

Renewed Motion for Class Certification (Document No. 82) is denied.

Dated this 18th day of May, 2015.

/s/ Fernando M. Olguin

United States District Judge

14 For this reason, the court is unpersuaded by plaintiff’s references to defendant’s time study. (See, e.g., Joint Brief at 6). Plaintiff states that the study concluded that the completion of auditstakes, on average, approximately 22.5 hours each week. (See id.). However, it may be improperto assume that California APCs spent 22.5 hours on audit related tasks weekly, as the hour totalincludes time spent by assistant managers, APCs, and APAs. (See id. at 10). More importantly,even if the court did operate under such an assumption, the court could not conclude based uponthe evidence that those 22.5 hours each week are spent on non-exempt tasks.

26


united states district court central district …hr.cch.com/eld/zackariawalmart.pdf · united...

Documents