Parra, et al v. Bashas' Inc, No. 2:2002cv00591 - Document 308 (D. Ariz. 2013)

Court Description: ORDER granting 159 Motion for Class Certification to the extent they are seeking certification of a class with respect to pay pursuant to Fed.R.Civ.P. 23(b)(3). In that regard, the court certifies a class as follows: All Hispanic workers currently and formerly employed by defendant Bashas' Inc. in an hourly position at any Food city retail store since April 4, 1998, who have been subject to the challenged pay policies and practices. FURTHER ORDERED that the working conditions claim is D ECERTIFIED; and FINALLY ORDERED that in conformity with Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the date of entry of this order, the parties shall submit jointly an agreed upon form of notice, a joint proposal for dissemination of the notice, and the time-line for opting out of the action. Plaintiffs must bear the costs of the notice, which shall include mailing by first-class mail. Signed by Senior Judge Robert C Broomfield on 5/31/13. (MAP)

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Parra, et al v. Bashas&#039; Inc 1 Doc. 308 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 José Parra, Gonzalo Estrada, and Aurelia Martinez, 13 Plaintiffs, 14 15 vs. Bashas’, Inc. 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. CIV-02-0591-PHX-RCB O R D E R 18 Introduction 19 More than a decade ago, current and former Hispanic1 20 employees of defendant Bashas’, Inc. filed this action 21 alleging race and national origin discrimination in violation 22 of Title VII of the 1964 Civil Rights Act as amended (“Title 23 VII”), 42 U.S.C. § 2000e, et seq., 24 and disparate treatment, and intentional race discrimination 25 in violation of 42 U.S.C. § 1981. for both disparate impact Plaintiffs allege that 26 27 28 1 Plaintiffs interchangeably refer to themselves as “Latino” or “Hispanic.” For the sake of uniformity, and because plaintiffs primarily refer to themselves as Hispanics so too will this court. Dockets.Justia.com 1 Bashas’ has discriminated against them with respect to pay 2 and working conditions. 3 certification of a pay class, but granted certification as to 4 the working conditions claim. 5 WL 6182338 (D. Ariz. 2005) (“Parra I”). 6 years, for a host of reasons recounted below, this action has 7 not moved beyond the class certification stage. 8 before the court is the most recent permutation of the class 9 certification issue. In 2005, this court denied Parra v. Bashas’, Inc., 2005 In the ensuing Pending 10 Background 11 Bashas’ Inc. operates three grocery store chains with 12 three different formats and monikers: A.J.’s Fine Foods 13 (“A.J.’s”); (2) Bashas’; and (3) Food City. 14 class action, named plaintiffs Gonzalo Estrada, 2 a Hispanic 15 former Food City hourly employee, and Aurelia Martinez, a 16 Hispanic current Food City hourly employee, 3 allege that 17 Bashas’ pays its “predominantly” Hispanic Food City 18 employees, less than it pays “the Caucasian employees at 19 A.J.’s Fine Foods and Bashas’ for performing the same work.” 20 First Amended Complaint (“FAC”) (Doc. 116) at 1:26-2:2, ¶ 1 21 (“the pay claim”). 22 City Hispanic employees “are required to work under In this putative Plaintiffs further allege that the Food 23 24 25 26 27 28 2 As part of their motion for class certification, plaintiffs have submitted numerous declarations from current and former Hispanic hourly Food City employees. José Agapito Perez Estrada provided one such declaration. To clarify, all references herein to Estrada are to the named plaintiff, Gonzalo Estrada. 3 Originally, José Parra also was a named plaintiff, but he has since withdrawn, although he remains a member of the putative class. See Parra I, 2005 WL 6182338, at *17 n. 31. -2- 1 conditions that are typically less safe and less hygienic 2 than the conditions found at A.J.’s . . . and Bashas’.” 3 at 2:2-4, ¶ 1 (“the working conditions claim”). Id. In Parra I, this court granted plaintiffs’ motion for 4 5 class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to 6 the working conditions claim, but denied certification of the 7 pay claim, because there was not “sufficient commonality 8 among the class members” as to the latter claim. 9 2005 WL 6182338, at *16. Parra I, Commonality, as Rule 23(a)(2) 10 requires for all class actions, was lacking because, as the 11 parties conceded, “the contested pay scales ha[d] merged and, 12 for the most part, are now identical.” 13 omitted). Id. at *15 (citations On appeal, the Ninth Circuit faulted this court for 14 15 “only look[ing] at the current pay scales.” Parra v. 16 Bashas’, Inc., 536 F.3d 975, 979 (9 th Cir. 2008) (“Parra II”), 17 cert. denied, Bashas’, Inc. v. Parra, 555 U.S. 1154, 129 18 S.Ct. 1050, 173 L.Ed.2d 470 (2009). 19 have “consider[ed] the evidence of past pay disparities and 20 discrimination common to the Hispanic workers at Food City.” 21 Id. 22 the “pay scales were common for all Bashas’, Inc. employees 23 and provided for different pay for similar jobs based only on 24 where the employee worked.” 25 Circuit pointed out that “[t]he class definition seeks to 26 reach those Hispanic employees who suffered past 27 discrimination under th[o]se pay scales.” 28 added). Given plaintiffs’ “extensive evidence showing This court also should Taking that evidence into account, the Court found that Id. -3- Additionally, the Ninth Id. (emphasis 1 Bashas’, Inc.’s discriminatory pay practices commonly 2 affected all members of the proposed class[,]” the Ninth 3 Circuit reversed this court’s commonality finding and 4 remanded, instructing it to “consider[] . . . the remaining 5 class certification factors[.]” 6 Id. at 979-980. Thereafter, the issue of class certification as to the 7 pay claim was in a state of legal limbo for quite a while. 8 Bashas’ filing of a voluntary Chapter 11 bankruptcy petition 9 resulting in an automatic statutory stay, heavily contributed 10 to that state, as did this court’s decision to “defer 11 resolution of the class certification issue pending a 12 decision” in 13 (9th Cir. 2010) (“Dukes II”) (en banc), cert. granted, --- 14 U.S. ---, 131 S.Ct. 795, 178 L.Ed.2d 530 (2010). 15 295) at 2:14-15 (citation omitted). 16 deferral “rather than deciding the case in haste without the 17 benefit of the Supreme Court’s decision in Dukes[.]” Id. at 18 2:13-14. 19 Wal-Mart Stores, Inc. v. Dukes, 603 F.3d 571 Ord. (Doc. This court opted for Nearly three years after Parra II, the Supreme Court 20 rendered its decision in Wal-Mart Stores, Inc. v. Dukes, 564 21 U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (“Dukes”). 22 Vacating certification of a class estimated to include 1.5 23 million female current or former Wal-Mart employees, 24 Supreme Court held, inter alia, that plaintiffs did “not 25 establish[] the existence of any common question[,]” as Rule 26 23(a)(2) requires. 27 accordance with this court’s order, the parties then 28 simultaneously filed supplemental briefs and replies with Id. at 2557 (footnote omitted). -4- the In 1 respect to the potential impact of Dukes upon the present 2 case. 3 respect to plaintiffs’ 2004 motion for class certification, 4 4 their positions during oral argument thereon, and the 5 parties’ supplemental Dukes briefs, replies and other 6 filings, the court finds as follows. 7 Discussion Originally, plaintiffs sought class certification 8 9 After considering all of the submissions filed with pursuant to Fed.R.Civ.P. 23(b)(2) as to both the pay and the 10 working conditions claims; and in Parra I, this court 11 confined its analysis accordingly. 12 Dukes, the plaintiffs are seeking certification of the pay 13 claim pursuant to Fed.R.Civ.P. 23(b)(3). 14 in light of Dukes, Bashas’ is requesting that this court 15 reconsider its decision certifying the working conditions 16 claim, and decertify that claim. 17 myriad of issues surrounding class certification as to each 18 of these two claims separately, beginning with the pay claim. 19 But first, the court will outline the legal framework for its 20 analysis. 21 I. Now, however, in light of Furthermore, also The court will address the Class Certification Legal Framework Rule 23 “give[s] the district court broad discretion 22 23 over certification of class actions[.]” 24 Ticketmaster Corp., 655 F.3d 1013, 1019 (9 th Cir. 2011). 25 26 27 28 4 Stearns v. In 2004, the class certification motion, the response, the reply and some supporting documentation were all filed under seal. Given “the extreme passage of time[,]” as Bashas’ notes, “much of the information no longer is sensitive.” Defs.’ Supp. Br. (Doc. 301) at 2:25, n. 1. Thus, to the extent the parties have relied upon any sealed documents, so, too has the court. -5- 1 However, class certification remains “‘an exception to the 2 usual rule that litigation is conducted by and on behalf of 3 the individual named parties only.’” Comcast Corp. v. 4 Behrend, --- U.S. ----, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 5 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701, 6 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). 7 departure from that rule, a class representative must be part 8 of the class and possess the same interest and suffer the 9 same injury as the class members.” 10 “[T]o justify a Dukes, 131 S.Ct. at 2550 (internal quotation marks and citations omitted). The Dukes Court made clear that “Rule 23 does not set 11 12 forth a mere pleading standard.” Dukes, 131 S.Ct. at 2551. 13 Therefore, “a party seeking to maintain a class action ‘must 14 affirmatively demonstrate . . . compliance’ with Rule 23.” 15 Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551- 16 2552). 17 that there are in fact sufficiently numerous parties, common 18 questions of law or fact,’ typicality of claims or defenses, 19 and adequacy of representation, as required by Rule 23(a).” 5 That means, “a party must . . . ‘be prepared to prove 20 5 21 22 23 24 25 26 27 28 “The Supreme Court . . . has yet to decisively attach a standard of proof to Rule 23 requirements[,]” Keegan v. American Honda Motor Co., 284 F.R.D. 504, 521 n. 83 (C.D.Cal. 2012) (internal quotation marks and citation omitted), even after its two most recent class action decisions, Amgen Inc. v. Conn. Ret. Plans and Trust Funds, --- U.S. ----, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013), and Comcast. Similarly, the Ninth Circuit has not yet been squarely confronted with this burden of proof issue. Among the Circuit Courts to have addressed the issue, a consensus is emerging around the “preponderance of the evidence” standard. See, e.g., Levitt v. J.P. Morgan Securities, Inc., 710 F.3d 454, 465 (2nd Cir. 2013) (internal quotation marks and citation omitted) (emphasis added) (“The Rule 23 requirements must be established by at least a preponderance of the evidence.”); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citations omitted) (“Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements, . . . , but they need not make that showing to a degree of absolute certainty. It is -6- 1 Id. 2 original). 3 limit[s] . . . class claims to those fairly encompassed by 4 the named plaintiff’s claims.” Dukes, 131 S.Ct. at 2550 5 (internal quotation marks and citations omitted). 6 (quoting Dukes, 131 S.Ct. at 2551) (emphasis in Satisfying those prerequisites, “effectively When analyzing the propriety of class certification, the 7 Supreme Court has “[r]epeatedly . . . emphasized that it 8 ‘‘may be necessary for the court to probe behind the 9 pleadings before coming to rest on the certification 10 question,’ and certification is proper only if ‘the trial 11 court is satisfied, after a rigorous 12 prerequisites of Rule 23(a) have been satisfied.’’” Comcast, 13 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551) (quoting 14 in turn General Telephone Co. of Southwest v. Falcon, 457 15 U.S. 147, 160–161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). 16 The exact contours of a “rigorous analysis,” as well as the 17 extent to which courts may “probe behind the pleadings[,]” is 18 still evolving. 19 analysis “will frequently entail ‘overlap with the merits of 20 the plaintiff’s underlying claim.’” analysis, that the What is certain though is that a rigorous Id. (quoting Dukes, 564 21 22 23 24 25 26 27 28 sufficient if each disputed requirement has been proven by a preponderance of evidence.”); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008) (“a district court exercising proper discretion in deciding whether to certify a class will resolve factual disputes by a preponderance of the evidence and make findings that each Rule 23 requirement is met or is not met[]”). However, that view is not universally held. See Gooch v. Life Investors, Co. of Am., 672 F.3d 402, 418 n. 8 (declining “preponderance of the evidence” standard for the “rigorous analysis” mandated by Dukes and Falcon). Absent specific guidance from the Supreme Court or the Ninth Circuit, the court, “see[s] no reason to superimpose a more specific standard than the Supreme Court[.]” See Gooch, 672 F.3d at 418 n. 8. This is especially so because “factual issues are not in play[]” in that Bashas’ concessions provide the primary factual basis, at least with respect to plaintiffs’ pay claim. See id. -7- 1 U.S. at ----, 133 S.Ct. at 2551). “That is so because the 2 ‘class determination generally involves considerations that 3 are enmeshed in the factual and legal issues comprising the 4 plaintiff’s cause of action.’” Id. 5 at ----, 131 S.Ct. at 2551) (other quotation marks and 6 citation omitted). (quoting Dukes, 564 U.S., 7 Post-Dukes, the Ninth Circuit has stressed that “a 8 district court must consider the merits if they overlap with 9 the Rule 23(a) requirements.”) Ellis v. Costco Wholesale 10 Corp., 657 F.3d 970, 981 (9 th Cir. 2011) (“Ellis I”) (emphasis 11 in original) (citations omitted). 12 has recently cautioned that “Rule 23 grants no license to 13 engage in free-ranging merits inquiries at the certification 14 stage. Merits questions may be considered to the extent – but 15 only to the extent - that they are relevant to determining 16 whether the Rule 23 prerequisites for class certification are 17 satisfied.” 18 133 S.Ct. 1426. 19 certification into a mini-trial.” 20 n. 8. 21 certification proceedings into a dress rehearsal for the 22 trial on the merits.” 23 HealthSystem, 669 F.3d 802, 811 (7 th Cir. 2012) (citations 24 omitted). 25 Indeed, the Supreme Court Amgen, 133 S.Ct. at 1194-95; see also Comcast, “To hold otherwise would turn class Ellis I, 657 F.3d at 983 This court thus will “not turn the[s]e class See Messner v. Northshore University That said, neither “the possibility that a plaintiff 26 will be unable to prove his allegations, nor the possibility 27 that the later course of the suit might unforeseeably prove 28 the original decision to certify the class wrong, is a basis -8- 1 for declining to certify a class which apparently satisfies 2 [Rule 23].” 3 Manufacturing Energy, Allied Industrial & Service Workers 4 International Union v. ConocoPhillips Co., 593 F.3d 802, 809 5 (9th Cir. 2010). 6 Rule 23(a) remains . . . indispensable.” 7 161. 8 “unquestioningly accept a plaintiff’s arguments as to the 9 necessary Rule 23 determinations.” United Steel, Paper & Forestry, Rubber, “[A]ctual, not presumed, conformance with Falcon, 457 U.S. at Consequently, “a court is not required to Gonzales v. Comcast 10 Corp., 2012 WL 10621, at *9 (E.D.Cal. Jan. 3, 2012) (internal 11 quotation marks and citation omitted), adopted in full, 2012 12 WL 217708 (E.D.Cal. Jan. 23, 2012). 13 Once all four prerequisites of Rule 23(a) are shown, 14 “the party must also satisfy through evidentiary proof at 15 least one of the provisions of Rule 23(b).” 16 S.Ct. at 1432. 17 is subsection three, which requires a court to find that “the 18 questions of law or fact common to class members predominate 19 over any questions affecting only individual members.” 20 Fed.R.Civ.P. 23(b)(3). 21 expressly held that “[t]he same analytical principles[,]” 22 outlined above, requiring a rigorous analysis and “frequently 23 entail[ing] some overlap with the merits[,] . . . govern Rule 24 23(b).” 25 These principles form the backdrop for the pending issue of 26 whether to certify a class as to plaintiffs’ pay claim, and 27 also whether to decertify the class as to their working 28 conditions claim. Comcast, 133 In the present case, the provision at issue Leaving no doubt, the Comcast Court Comcast, 133 S.Ct. at 1432 (citation omitted). -9- 1 2 II. Pay Claim A. 1. 3 4 Fed.R.Civ.P. 23(a) Numerosity Numerosity, the first prerequisite for class 5 certification under Rule 23(a), is shown when “the class is 6 so numerous that joinder of all members is impracticable.” 7 Fed.R.Civ.P. 23(a)(1). In Parra I, Bashas’ did not contest 8 certification based upon a lack of numerosity, and the 9 putative class has “thousands of members[.]” See Parra I, 10 2005 WL 6182338, at *14 (citations omitted). 11 thus have readily shown numerosity. 12 did not contest numerosity on appeal, nor does Bashas’ raise 13 that issue now, the court adheres to that earlier finding. 14 Consequently, the court is free to turn to the vigorously 15 disputed issue of whether, in the wake of Dukes, plaintiffs 16 have met their burden of showing commonality as to their pay 17 claim. 18 19 2. The plaintiffs Further, because Bashas’ Commonality The second requirement under Rule 23(a) is the existence 20 of “questions of law or fact common to the class[.]” 21 Fed.R.Civ.P. 23(a)(2). 22 “[t]he crux” of 23 case, the parties strenuously disagree as to the 24 applicability of Dukes, especially given the procedural 25 posture of this case -- on remand after a finding of 26 commonality. 27 restated the standard for establishing commonality[.]” Def.’s 28 Resp. (Doc. 304) at 5:20, n. 1 (citations omitted). Commonality under that Rule was Dukes, 131 S.Ct. at 2550. In the present From Bashas’ perspective, Dukes “substantially - 10 - Strongly 1 implying that because Dukes constitutes an intervening change 2 in law, Bashas’ further argues that “[n]either the law of the 3 case doctrine nor the mandate rule” require this court to 4 abide by the Ninth Circuit’s finding of commonality in Parra 5 II. 6 Dukes “it is not only proper but necessary [for this court] 7 to revisit Plaintiffs’ ability to show commonality.” 8 5:23, n. 1. Id. at 5:19, n. 1. Hence, Bashas’ believes that after Id. at To the contrary, plaintiffs argue that the Ninth 9 10 Circuit’s finding of commonality in Parra II “is unaffected” 11 by Dukes. Pls.’ Supp. Br. (Doc. 302) at 16:11. 12 plaintiffs assert that Bashas’ is “effect[ively] . . . 13 urg[ing] this Court to ignore the mandate of the Ninth 14 Circuit.” Pls.’ Reply (Doc. 303) at 6:5-6 (citation 15 omitted). Skirting the critical issue of whether Dukes 16 amounts to a change in controlling law, 17 observe that the Parra II Court “did not rely on any of the 18 Ninth Circuit’s rulings in Wal-Mart, now reversed by the 19 Supreme Court[”] in Dukes. 20 true,6 it does not necessarily follow that because of that 21 Dukes is not an intervening change in law, as plaintiffs 22 suggest. Therefore, plaintiffs first Id. at 16:12-13. While obviously Plaintiffs add that Dukes and the present case “raise 23 24 different commonality issues.” Id. at 16:14. 25 is so, it also does not necessarily follow therefrom that 26 Dukes does not constitute an intervening change in law. Assuming that Put 27 28 6 Given that Parra II was decided in 2008, it would have been impossible for that Court to have relied upon the Ninth Circuit’s 2010 Dukes decision. - 11 - 1 differently, it is possible that Dukes is an intervening 2 change in law, regardless of the nature of the commonality 3 issues. 4 in this case is precisely the kind of ‘specific employment 5 practice’ found lacking by the Supreme Court in [Dukes].” 6 Id. at 16:19-21. 7 the change in law issue. Plaintiffs’ final response is that “the policy issue a. Law of the Case/Rule of Mandate 8 9 Still, this is not directly responsive to It is well settled in this Circuit that “‘[w]hen a case 10 has been decided by an appellate court and remanded, the 11 court to which it is remanded must proceed in accordance with 12 the mandate and such law of the case as was established by 13 the appellate court.’” United States v. Luong, 627 F.3d 1305, 14 1309 (9th Cir. 2010) (quoting Firth v. United States, 554 F.2d 15 990, 993 (9th Cir. 1977)). Pursuant to the law of the case, “a 16 court will generally refuse to reconsider an issue that has 17 already been decided by the same court or a higher court in 18 the same case.” 19 (9th Cir. 2012) (citation omitted) (en banc), cert. granted, - 20 -- U.S. ----, 133 S.Ct. 476, 184 L.Ed.2d 296 (2012). 21 law of the case doctrine applies when, inter alia, “the issue 22 in question [was] decided explicitly . . . in the previous 23 disposition.” 24 (9th Cir. 2007). 25 whether plaintiffs met Rule 23(a)(2)’s commonality standard – 26 was explicitly decided in Parra II. 27 the Ninth Circuit’s finding of commonality in Parra II would 28 have been binding upon this court, and the law of the case Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4 The United States v. Thrasher, 483 F.3d 977, 981 Plainly, “the issue in question” here – - 12 - Thus, prior to Dukes, 1 doctrine would have barred reconsideration of that issue on 2 remand. 3 The same result holds true with respect to the rule of 4 mandate, which “is similar to, but broader than, the law of 5 the case doctrine.” 6 and citation omitted). 7 emphasized that when acting under an appellate court’s 8 mandate, an inferior court ‘cannot vary it, or examine it for 9 any other purpose than execution; or give any other or See id. at 982 (internal quotation marks “The Supreme Court long ago 10 further relief; or review it, even for apparent error, upon 11 any matter decided upon appeal; or intermeddle with it, 12 further than to settle so much as has been remanded.’” 13 Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9 th Cir. 14 1984) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 15 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)). 16 Dukes, the rule of mandate would have deprived this court of 17 jurisdiction to revisit on remand the Parra II commonality 18 finding. 19 marks and citation omitted) (“[I]f a district court errs by 20 violating the rule of mandate, the error is a jurisdictional 21 one[.]”) That is so because in reversing this court’s 22 “finding that Plaintiffs’ originally proposed class lacked 23 commonality under Rule 23(a)(2),” the Ninth Circuit 24 explicitly remanded “for consideration of the remaining class 25 certification factors in accordance with [its] opinion.” 26 Parra II, 536 F.3d at 980 (emphasis added). 27 28 Prior to See Luong, 627 F.3d at 1309 (internal quotation Importantly, there is some flexibility with respect to the rule of mandate and law of the case doctrines. - 13 - Indeed, 1 Ninth Circuit “cases make clear that the rule of mandate is 2 designed to permit flexibility where necessary, not to 3 prohibit it.” 4 (9th Cir. 2000) (emphasis added). 5 has recognized that the “[l]aw of the case should not be 6 applied woodenly in a way inconsistent with substantial 7 justice.” 8 Cir. 1987); see also Yankee Atomic Electric Co. v. United 9 States, 679 F.3d 1354, 1360 (Fed. Cir. 2012) internal U.S. v. Kellington, 217 F.3d 1084, 1095 n. 12 The Ninth Circuit likewise United States v. Miller, 822 F.2d 828, 832-33 (9 th 10 quotation marks and citations omitted) (“An appellate mandate 11 does not turn a district judge into a robot, mechanically 12 carrying out orders that become inappropriate in light of 13 subsequent factual discoveries or changes in the law.”) 14 Given that inherent flexibility, there are exceptions 15 warranting a departure from the law of the case and rule of 16 mandate doctrines. 17 discretion to depart from the law of the case doctrine based 18 upon “intervening controlling authority [which] makes 19 reconsideration appropriate[.]” 20 682 F.3d 811, 820 (9 th Cir. 2012) (internal quotation marks 21 and citations omitted). Further, because “[t]he mandate rule 22 is a subpart of the law of the case doctrine[,]” . . . the 23 mandate rule is subject to the same exceptions[]” as the law 24 of the case doctrine. 25 Co. v. Fraschilla (In re Fraschilla), 235 B.R. 449, 457 (9 th 26 Cir. BAP 1999), aff’d, 242 F.3d 381 (9th Cir. 2000) (citing 27 Miller, 822 F.2d at 832). 28 has identified . . . an intervening change in the law” as one Among other reasons, a court has United States v. Jingles, American Express Travel Related Serv. Hence, because the “Ninth Circuit - 14 - 1 of several “circumstances in which the law of the case 2 doctrine,” need not be applied, “by analogy the rule of 3 mandate doctrine[] [also] need not be applied[]” when there 4 has been such a change in the law. 5 2010 WL 4825925, at *5 (C.D.Cal. 2010) (emphasis added) 6 (citing cases). See Allen v. Astrue, 7 In the present case, the issue thus becomes whether, as 8 Bashas’ contends, Dukes constitutes an intervening change in 9 the controlling law so as to permit departure from the rule 10 of mandate and law of the case doctrines. 11 235 B.R. at 455 (citing cases)(“[T]rial courts are permitted 12 on remand to consider whether any exceptions to the law of 13 the case doctrine excuse compliance with a determination made 14 by an appellate court.”) 15 the Ninth Circuit sweepingly declared it to be “new precedent 16 altering existing case law[,]” requiring remand to the 17 district court. 18 in Ellis vacated and remanded a grant of class certification 19 in a Title VII action alleging gender discrimination by the 20 defendant employer in its promotion and management practices. 21 Admittedly, the Ellis I Court was not faced with the precise 22 issue before this court: whether Dukes is a change in 23 controlling law so as to permit deviating from the law of the 24 case and rule of mandate doctrines. 25 Circuit’s broad declaration in Ellis I is a strong signal 26 that it views Dukes as changing the legal landscape with 27 respect to class certification. 28 See Fraschilla, In its first application of Dukes, Ellis I, 657 F.3d at 974. The Ninth Circuit Nonetheless, the Ninth Reinforcing this view is the Ninth Circuit’s more recent - 15 - 1 decision in Wang v. Chinese Daily News, Inc., 709 F.3d 829 2 (9th Cir. 2013). 3 defendant had “waived its right to challenge the district 4 court’s commonality finding because its opening brief, filed 5 before . . . Wal-Mart, discussed the existence of common 6 questions only in arguing against Rule 23(b)(3) 7 certification.” 8 the issue of commonality in its discussion of Rule 23(a).” 9 Id. There, the plaintiffs argued that the Id. at 833. The defendant “did not argue “Generally, an issue is waived when the appellant does 10 not specifically and distinctly argue the issue in his or her 11 opening brief.” 12 omitted). 13 appellate court “may consider new arguments . . . if the 14 issue arises because of an intervening change in law[,]” the 15 Ninth Circuit “conclude[d] that the [Supreme] Court’s 16 decision in Wal-Mart present[ed] a sufficiently significant 17 legal development to excuse any failure of [the defendant] to 18 discuss the commonality requirement of Rule 23(a)(2) in its 19 opening brief.” Id. (internal quotation marks and citation However, invoking the settled rule that an Id. 20 The Ninth Circuit is not alone in its view that Wal-Mart 21 is “new precedent altering existing case law[,]” Ellis I, 657 22 F.3d at 974, or a “significant legal development[.]” See 23 Wang, 709 F.3d at 833. 24 courts within this Circuit, have variously recognized that 25 Dukes: (1) sets forth a “heightened standard of 26 commonality[;]”7 (2) “represents a significant restatement of Other courts, including district 27 28 7 See Morrison v. Anadarko Petroleum Corp., 280 F.R.D. 621 (W.D.Okla. 2012) (refusing to give preclusive effect to a state court class certification order because that court “did not apply the heightened - 16 - 1 the commonality requirement[;]” 8 2 23(a) commonality element; 9 and (4) “undoubtedly increas[es] 3 the burden on class representatives by requiring that they 4 identify how common points of facts and law will drive or 5 resolve the litigation[.]” 10 6 weight of authority, the court is convinced that Dukes 7 represents an intervening change in law. (3) clarifies the Rule Partially based upon this 8 Additionally, an independent examination of Dukes 9 further convinces this court that the Supreme Court altered 10 the legal standards for assessing commonality by, among other 11 things, adding an additional level of scrutiny under Rule 12 23(a)(2). 13 “[w]hat matters to class certification . . . is not the More specifically, Dukes adopted the view that 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standard of commonality as set forth in Dukes[]”). 8 Walter v. Hughes Communications, Inc., 2011 WL 2650711, at *7 (N.D.Cal. 2011). 9 See, e.g., Ellis I, 657 F.3d at 974 (“Several of the[] issues [“relating to class certification[]”] have recently been clarified by Dukes); Ross v. RBS Citizens, N.A., 667 F.3d 900, 902 (7th Cir. 2012) (“[T]he Supreme Court clarified the Rule 23(a) commonality element in” Dukes); Sanchez v. Sephora USA, Inc., 2012 WL 2945753, at *3 (N.D.Cal. 2012) (same); In re Wells Fargo Residential Mortg. Lending Discrimination Litigation, 2011 WL 3903117, at *2 (N.D.Cal. 2011) (same). This court is keenly aware that in attempting to define what constitutes an intervening change in controlling law, it has previously found that “cases which merely confirm, clarify or explain existing case law” do not amount to such a change. Teamsters Local 617 Pension and Welfare Funds v. Apollo Group, Inc., 282 F.R.S. 216, 224 (D.Ariz. 2012). Significantly, however, in Apollo Group this court was examining what constitutes an intervening controlling law for purposes of determining whether to alter or amend a judgment under Rule 59(e), and it limited its finding accordingly. The interests of finality and conservation, which are of paramount importance in that context, Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003), are not implicated here. Moreover, as can be seen, clarification is just one of many ways in which courts have described Dukes’ influence on Rule 23(a)(2)’s commonality standard. 10 Gonzales, 2012 WL 10621, at *10 (citation omitted) (emphasis in original). - 17 - 1 raising of common ‘questions’ — even in droves — but, rather 2 the capacity of a classwide proceeding to generate common 3 answers apt to drive the resolution of the litigation.” 4 Dukes, 131 S.Ct. at 2551 (internal quotation marks and 5 citation omitted) (emphasis in original). 6 its discretion, and given “the contours of the situation and 7 common sense[,]” this court finds it appropriate to revisit 8 the commonality issue, notwithstanding the Ninth Circuit’s 9 resolution of that issue in Parra II.11 Consequently, in Hegler v. Borg, 50 F.3d 1472 (9 th Cir. 1995) (“Hegler 10 11 II”), is closely analogous, and provides additional support 12 for reexamining the commonality issue in light of Dukes. 13 Reversing and remanding, in Hegler v. Borg, 990 F.2d 1258 (9 th 14 Cir. 1993), 15 to determine whether a particular error was harmless beyond a 16 reasonable doubt. 17 the instruction in the mandate because an intervening Supreme 18 19 20 21 22 23 24 25 26 27 the Ninth Circuit instructed the district court On remand, the district court “disobeyed 11 To a certain extent, the court finds itself in the position, so aptly described by the Fraschilla court: In effect, when there has been an intervening authoritative decision of a higher appellate court [i.e., Dukes] to which both the lower appellate court that issued the mandate [i.e., Parra III] and th[is] trial court owe obedience, then the trial court is presented with the dilemma of a clash between the dictates of the doctrine of stare decisis and the imperative of the mandate rule. The correct choice depends upon the contours of the situation and common sense. It is no more comfortable for the trial court than it is for the private soldier who receives contradictory orders from the sergeant and the captain or the employee caught between a middle manager and a top executive. Fraschilla, 235 B.R. at 458. 28 - 18 - 1 Court decision prescribed a different standard.” Fraschilla, 2 235 B.R. at 458. 3 agreed that it “must apply intervening Supreme Court 4 authority to a subsequent appeal[]” as an exception to the 5 law of the case doctrine. 6 Therefore, the Hegler II Court “had no difficulty affirming 7 the [district] court[]” despite that court’s disregard of the 8 mandate and the law of the case. 9 458 (citation and footnote omitted). In Hegler II, another Ninth Circuit panel Hegler II, 50 F.3d at 1478. See Fraschilla, 235 B.R. at 10 Southern Oregon Barter Fair v. Jackson County, 372 F.3d 11 1128 (9th Cir. 2004), and Fraschilla, 235 B.R. 449, are also 12 instructive as to when a district court may depart from the 13 mandate and law of the case. 14 that it was not an abuse of discretion to re-examine the 15 merits after the issuance of a preliminary injunction, 16 notwithstanding the law of the case, because an intervening 17 Supreme Court decision “provided important guidance” therein. 18 Barter Fair, 372 F.3d at 1136. 19 In Barter Fair, the Court held Similarly, in Fraschilla, 235 B.R. 449, the Bankruptcy 20 Appellate Panel (“BAP”) held that although its mandate had 21 directed entry of judgment in plaintiff’s favor, the trial 22 court did not err by subsequently conducting a trial where, 23 following remand, there had been two intervening Ninth 24 Circuit decisions. 25 importance of the other elements of [nondischargeability for] 26 common law fraud.” 27 decision, while “somewhat opaque,” “adjusted the focus” for a 28 finding of nondischargeability, “emphasiz[ing] the need to One such decision “amplified the Id. at 456. - 19 - The second intervening 1 make an actual finding regarding intent[.]” Id. Those two 2 decisions change[d] the landscape regarding credit card 3 nondischargeability actions . . . alter[ing] the analysis 4 that was applicable when the BAP decided the initial 5 appeal[]” therein. 6 Fraschilla demonstrate, even if an intervening decision does 7 not go so far as to 8 nonetheless, such a decision can warrant a departure from the 9 rule of mandate and law of the case doctrines. 10 11 Id. at 455. As Barter Fair and “prescribe a different standard,” See Fraschilla, 235 B.R. at 458. Ultimately, as plaintiffs assert, the Parra II Court’s 12 finding of commonality (as distinguished from its rationale) 13 might be “unaffected.” 14 (citation omitted). 15 that Dukes “does not require a re-examination of [prior] 16 factual findings[] in this case. 17 at 6:8-9 (emphasis added). 18 disregard Dukes, which altered the legal standards for 19 assessing Rule 23(a)(2) commonality. b. 20 21 Pls.’ Supp. Br. (Doc. 302) at 6:13 It also may be, as plaintiffs assert, See Pls.’ Reply (Doc. 303) Nevertheless, this court cannot Dukes The Dukes plaintiffs alleged “that the discretion 22 exercised by their local supervisors over pay and promotions 23 matters violate[d] Title VII by discriminating against 24 women.” 25 attempted to demonstrate the common issue of company-wide 26 gender discrimination chiefly through three different “forms 27 of proof[.]” Dukes, 131 S.Ct. at 2549. 28 relied upon “statistical evidence about pay and promotion Dukes, 131 S.Ct. at 2547. - 20 - The Dukes plaintiffs First, the plaintiffs 1 disparities between men and women at the company[.]” Id. 2 Second, they relied upon “anecdotal reports of discrimination 3 from about 120 of Wal–Mart’s female employees[.]” 4 Third, the plaintiffs relied upon “the testimony of a 5 sociologist, . . . , who conducted a ‘social framework 6 analysis’ of Wal–Mart’s ‘culture’ and personnel practices, 7 and concluded that the company was ‘vulnerable’ to gender 8 discrimination.” 9 nation-wide class, a five justice majority in Dukes held that Id. (citation omitted). Id. In dismantling the 10 plaintiffs did not show commonality because they did not 11 “provide . . . convincing proof of a companywide 12 discriminatory pay and promotion policy[,]” and hence they 13 did “not establish[] the existence of any common question[,]” 14 as Rule 23(a)(2) mandates. 15 Id. at 2556-57. Summarizing the commonality requirement, Justice Scalia 16 wrote, that it “requires the plaintiff to demonstrate that 17 the class members ‘have suffered the same injury[,]’” not 18 “merely that they have all suffered a violation of the same 19 provision of law.” 20 157, 102 S.Ct. 2364). 21 same injury, plaintiffs’ “claims must depend upon a common 22 contention,” according to the Dukes Court. Id. 23 contention, in turn, “must be of such a nature that it is 24 capable of classwide resolution - which means that 25 determination of its truth or falsity will resolve an issue 26 that is central to the validity of each [claim] in one 27 stroke.” 28 because there was not “some glue holding the alleged reasons Id. Id. at 2551 (quoting Falcon, 457 U.S. at To show that they have suffered the That common Such a common contention was missing in Dukes - 21 - 1 for all [of] those [individual employment] decisions 2 together[.]” 3 it would “be impossible to say that examination of all the 4 class members’ claims for relief will produce a common answer 5 to the crucial question why was I disfavored.” 6 in original). 7 Id. at 2552 (emphasis in original). Therefore, Id. (emphasis Rejecting plaintiffs’ statistical evidence, the Dukes 8 Court found that “[e]ven if . . . taken at face value,” such 9 evidence was “insufficient to establish that [plaintiffs’] 10 theory c[ould] be proved on a classwide basis.” 11 “Merely showing that Wal-Mart’s policy of discretion had 12 produced an overall sex-based disparity does not suffice.” 13 Id. at 2556. 14 proof though was their failure to “identif[y]” [a] ‘specific 15 employment practice’ - - much less one that ties all their 16 1.5 million claims together.” 17 anecdotal evidence in Dukes was similarly defective and “too 18 weak to raise an inference that all the individual, 19 discretionary personnel decisions are discriminatory[,]” 20 because it did not focus on particular Wal-Mart stores. 21 Thus, because the plaintiffs did not provide “convincing 22 proof of a companywide discriminatory pay and promotion 23 policy,” the Dukes Court held that they did “not establish[] 24 the existence of any common question.” 25 omitted). 26 27 28 Id. at 2555. The “more fundamental” failure in plaintiffs’ c. Id. at 1255-56. Plaintiffs’ Id. Id. (footnote Analysis Before considering whether plaintiffs have shown commonality post-Dukes, it is necessary to clarify the scope - 22 - 1 of their pay claim. 2 2004, plaintiffs have severely restricted the scope of that 3 claim. 4 pay policy purporting to have “elements of local manager 5 subjectivity[,]” Pls.’ Supp. Br. (Doc. 302) at 18:27, n. 9, 6 the so-called, “Subjective Placement claim[.]” Pls.’ Reply 7 (Doc. 303) at 5:16-17. 8 they “did not pursue that policy on . . . appeal . . . and no 9 longer seek certification of that claim[,]” however. 10 Since seeking class certification in Originally, plaintiffs’ pay claim had encompassed a Plaintiffs unequivocally declare that Pls.’ Supp. Br. (Doc. 302) at 18:27-28, n. 9. Another component of plaintiffs’ pay claim had been 11 12 Bashas’ alleged failure to pay Sunday premiums to Food City 13 employees. 14 Sunday premiums; and, more importantly, they have not come 15 forth with any factual support for this claim, as Bashas’ 16 accurately notes. 17 n. 2 (citation omitted). 18 correctly notes, “[p]laintiffs never raised this [issue] 19 again and neither this Court nor the [Ninth] Circuit . . . 20 addressed it.” 21 therefore, implicitly abandoned the Sunday premiums aspect of 22 their pay claim. 23 be, inaction, plaintiffs’ pay claim now consists solely of 24 what they describe as Bashas’ “written Two-Tiered Wage Scale 25 [(“the wage scale”)][.]” 12 Plaintiffs make only “passing reference” to the See Def.’s Supp. Br. (Doc. 301) at 2:26, Furthermore, as Bashas’ also Id. at 2:27-28, n. 2. Plaintiffs have, Through their actions or, as the case may Pls.’ Reply (Doc. 303) at 5:17-18. 26 27 28 12 Bashas’ twice acknowledges that plaintiffs are challenging its pay scales. See Def.’s Supp. Br. (Doc. 301) at 9:19-20 (citations omitted) (emphasis added) (identifying “Bashas’ pay scales[]” as “the actual employment practice challenged in this case[]”); and id. at 10:19-20 (emphasis added) (defining the “issue at hand[]” as whether the challenged - 23 - 1 The court will limit its analysis accordingly. Plaintiffs are pursuing two closely related, although 2 3 not identical, theories of discrimination with respect to 4 Bashas’ wage scales – disparate treatment and disparate 5 impact.13 6 Borrowing from Dukes, plaintiffs assert that they do have a 7 common answer to the “crucial question” posed therein, “[ w]hy 8 was I disfavored?” 9 original). See Pls.’ Supp. Br. (Doc. 302) at 17:28-18:2. See Dukes, 131 S.Ct. at 2552 (emphasis in The common answer, plaintiffs posit, is because 10 Bashas’ “adopted a lower wage scale for predominantly 11 Hispanic Food City employees doing the same work as their 12 white counterparts at Bashas’ and A.J.’s Fine Foods.” 13 Supp. Br. (Doc. 302) at 17:26-28. Pls.’ Thus, regardless of which 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pay scales constitute a discriminatory practice[]”). Yet, in its reply Bashas’ seems to disavow that view, declaring that “[w]hile Plaintiffs claim to challenge [its] pay scales, in reality, they [are] rely[ing] on statistically derived average pay differences between Hispanic Food City employees and their counterparts working in other Bashas’ formats.” Def.’s Resp. (Doc. 304) at 3:3-5 (emphasis in original). Even assuming arguendo that is so, it does not change the fact that plaintiffs’ equal pay claim centers on Bashas’ wages scales themselves. 13 For the most part, the parties have overlooked the distinction between these two theories. For example, in its reply Bashas’ outlines the legal framework for a prima facie case of disparate impact, Def.’s Resp. (Doc. 304) at 4:1-22, but it seems to couch its Dukes-based arguments in terms of disparate treatment, not disparate impact. Bashas’ is not alone in this tendency. Even though they are pursuing both, plaintiffs did not separately analyze disparate impact and disparate treatment in terms of commonality or otherwise. Cf. Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 510 (N.D.Cal. 2012) (“Ellis II”) (“[B]ecause there are differences with respect to the way Dukes might be applied to disparate treatment, as opposed to disparate impact claims, the Court . . . address[ed] these claims separately[.]”) Following the parties’ lead, and without the advantage of their fully briefed views on this issue, this court, too, will not distinguish between disparate treatment and disparate impact at this stage. That does not foreclose the possibility that that distinction will become relevant later in this litigation. - 24 - 1 theory their pay claim is grounded upon, plaintiffs contend 2 that they have met Dukes’ commonality standard because 3 “[r]esolution of whether Bashas’ [pay] policy violates Title 4 VII and Section 1981 . . . will resolve the question for all 5 class members.” 6 Id. at 17:23-25. Bashas’ responds that commonality is lacking because, as 7 in Dukes, the plaintiffs “cannot provide proof of a 8 companywide discriminatory pay practice.” 9 (Doc. 301) at 12:24 (emphasis omitted). Bashas’ further Def.’s Supp. Br. 10 responds that, also like Dukes, neither plaintiffs’ 11 statistical nor their anecdotal evidence suffice to establish 12 commonality. 13 shortcomings in Dukes only serves to lay bare the flaws in 14 Bashas’ commonality analysis, however. 15 assails the evidence of plaintiffs’ statistician, Dr. Richard 16 Drogin, it cannot now distance itself from “three significant 17 . . . conce[ssions]” it made earlier in this litigation. 18 Parra II, 536 F.3d at 979. 19 Ward, an economist and statistician, to refute Dr. Drogin’s 20 statistical analyses. 21 reached by Dr. Drogin: 22 23 24 25 26 27 28 Patterning its argument after the evidentiary Although Bashas’ See Bashas’ retained Dr. Michael P. Dr. Ward conceded these conclusions (1) Food City Stores have a higher percentage of Hispanic employees compared to Bashas’ or A.J.’s stores, (2) the pay scales at Bashas’ and A.J.’s stores were higher than those at Food City during the period 1998-2000, and (3) Hispanic employee hourly rates were lower in similar jobs. Id.; see also Parra I, 2005 WL 6182338, at *16 (same). Bashas’ wage scales, in combination with these concessions, provide the “convincing proof of a companywide discriminatory - 25 - 1 pay . . . policy” missing from Dukes. 2 at 2556. 3 4 See Dukes, 131 S.Ct. Indeed, even prior to Dukes, the Ninth Circuit was similarly convinced, explaining that: These pay scales were common for all Bashas’, Inc. employees and provided for different pay for similar jobs based only on the store where the employee worked. The proposed class here shares the alleged discriminatory pay scales of Bashas’, Inc. The class definition seeks to reach those Hispanic employees who suffered past discrimination under these pay scales. 5 6 7 8 9 10 Parra II, 536 F.3d at 979. 11 Bashas’ assertion that 12 because Dr. Drogin “fail[ed] to “identify . . . a ‘specific 13 employment practice’ or one that impacts all of the 14 individuals in the proposed class.” 15 301) at 10:24-26 (citing Dukes, 131 S.Ct. at 2555). 16 The foregoing seriously erodes plaintiffs have not shown commonality Def.’s Supp. Br. (Doc. Relatedly, the foregoing also deeply undercuts Bashas’ 17 bald assertion that commonality is lacking because the 18 plaintiffs cannot show that they “‘have suffered the same 19 injury[.]’” Def.’s Supp. Br. (Doc. 301) at 9:14-15 (quoting 20 Dukes, 131 S.Ct. at 2551) (emphasis added by Bashas’). 21 putative class members have suffered the same injury: they 22 received lower wages than their Caucasian counterparts at 23 A.J.’s and Bashas’ stores at least “during the period 1998- 24 2000[]” when, it is undisputed, that “the pay scales at 25 Bashas’ and A.J.’s stores were higher than those at Food 26 City[.]” 27 [Bashas’] pay scales, the hourly pay disparities for 28 comparable jobs at the three brand named stores ranged from The See Parra II, 536 F.3d at 977 (“according to - 26 - 1 $0.15 per hour to $2.94 per hour[,]” which “translate to 2 annual salary differences of around $300 per year to almost 3 $6,000 per year[]”). 4 claim by [current and former Food City] employees that they 5 have suffered a Title VII injury, or even a disparate-impact 6 Title VII injury[.]” 7 as is evident, plaintiffs’ pay claims can “productively be 8 litigated at once.” 9 Thus, unlike Dukes, this is not a “mere See Dukes, 131 S.Ct. at 2551. Rather, See id. In addition, Bashas’ attacks on plaintiffs’ statistical 10 evidence are largely immaterial because they are directed 11 primarily at Dr. Drogin’s regression analyses, which 12 plaintiffs offered to support their “Subjective Placement 13 claim[]” – a claim they are no longer pursuing.14 14 Br. (Doc. 303) at 7:1-2 (footnote omitted). 15 better with its attacks on plaintiffs’ anecdotal evidence – 16 declarations from 13 former and current Bashas’ employees. As 17 with their statistical evidence, Bashas’ contends that 18 plaintiffs cannot establish commonality because, their 19 anecdotal evidence, inter alia, does not “provide 20 ‘significant proof’ that [Bashas’] operated under a general 21 policy of discrimination[.]’” Def.’s Supp. Br. (Doc. 301) at 22 11:9-10 (quoting Dukes, 131 S.Ct. at 2553). 23 counter, and the court agrees, that their anecdotal evidence 24 is “unnecessary to establish commonality[,]” Pls.’ Reply 25 (Doc. 303) at 7:15 (emphasis omitted), given the “three Pls.’ Reply Bashas’ fares no Plaintiffs 26 27 28 14 Given the simultaneous filing of the opening post-Dukes briefs, Bashas’ cannot be faulted in its opening brief for concentrating on its perceived deficiencies in Dr. Drogin’s analyses. Bashas’ had no way of knowing when it filed that brief, that plaintiffs would be abandoning their Subjective Placement claim. - 27 - 1 significant conclusions conceded by Bashas’” and identified 2 above. See Parra II, 536 F.3d at 979. Of equal import is that Bashas’ written, non- 3 4 discretionary, centralized wage scale under which, as 5 plaintiffs allege and the evidence indicates, Hispanic Food 6 City hourly employees were paid less than their Caucasian 7 counterparts at Bashas’ and A.J.’s stores, is precisely what 8 was missing in Dukes. 9 (emphasis added) (“These plaintiffs . . . do not allege that See Dukes, 131 S.Ct. at 2548 10 Wal-Mart has any express corporate policy against the 11 advancement of women.”) 12 ‘glue’ the Supreme Court sought — but did not find — in 13 Dukes, sufficient to ‘say that examination of all the class 14 members’ claims for relief will produce a common answer to 15 the crucial question why was I disfavored.” 16 F.R.D. at 530 (emphasis in original) (quoting Dukes, 131 17 S.Ct. at 2552). Bashas’ wage scales “provide the Ellis II, 285 So, for example, if a trier of fact finds that Bashas’ 18 19 wage scales “lead to disparate outcomes[,]” that “is a common 20 question subject to classwide proof and rebuttal.” See id. at 21 531. 22 falsity” of whether Bashas’ wage scales violate Title VII or 23 section 1981 in the manner alleged “will resolve in one 24 stroke[]” an issue that is “central to the validity” of each 25 class member’s pay claim. 26 also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 27 1029 (9th Cir. 2012) (quoting Dukes, 131 S.Ct. at 2551) (claim 28 that defendant violated the Fair Debt Collection Practices In the parlance of Dukes, determining the “truth or See Dukes, 131 S.Ct. at 2551; see - 28 - 1 Act by sending “collection notices addressed to the debtor, 2 but in ‘care of’ the debtor’s employer, without first 3 obtaining consent[,] . . . is a common contention among the 4 class and ‘determination of its truth or falsity’ is pivotal 5 to this lawsuit and is capable of determination ‘in one 6 stroke[]’”). 7 claim is concerned, “presents the classic case for treatment 8 as a class action: that is, the commonality linking the class 9 members is the dispositive question in the lawsuit.” “This case,” at least insofar as the equal pay See 10 Evon, 688 F.3d at 1030 (internal quotation marks and citation 11 omitted). 12 Notably, “commonality only requires a single significant 13 question of law or fact.’” Mazza, 666 F.3d at 589 (quoting 14 Dukes, 131 S.Ct. at 2556) (emphasis added). 15 plaintiff’s burden at this stage is that Rule 23(a)(2)’s 16 commonality requirement is to be “construed permissively, and 17 “[a]ll questions of fact and law need not be common to 18 satisfy the rule.” 19 quotation marks and citation omitted); see also Evon, 688 20 F.3d at 1030 (internal quotation marks and citation omitted) 21 (“It is not necessary that members of the proposed class 22 share every fact in common.”) Plaintiffs thus have a “limited 23 burden under Rule 23(a)(2)[.]” Mazza, 666 F.3d at 589. 24 Consequently, even in the wake of Dukes, for the reasons 25 outlined above, this court has little difficulty finding that 26 a class proceeding herein has “the capacity to generate 27 common answers apt to drive the litigation” insofar as the 28 equal pay claim is concerned. Further easing a Ellis I, 657 F.3d at 981 (internal See Dukes, 131 S.Ct. at 2551 - 29 - 1 (internal quotation marks and citation omitted) (emphasis in 2 original); see also Gales v. Winco Foods, 2011 WL 3794887, at 3 *2 (N.D.Cal. Aug. 26, 2011)(finding commonality where 4 plaintiff identified an employer’s policy of exempting from 5 overtime all assistant managers). 6 is necessary to determine whether Bashas’ wage scales violate 7 federal law. No individualized inquiry 8 While not alone dispositive, the difference in scale 9 between Dukes further underscores why Dukes does not preclude 10 a finding of commonality here. 11 expansive class actions ever[,]” comprised of approximately 12 1.5 million members. Dukes, 131 S.Ct. at 2547. 13 the Dukes plaintiffs “held a multitude of different jobs, at 14 different levels of Wal–Mart’s hierarchy, for variable 15 lengths of time, in 3,400 stores, sprinkled across 50 states, 16 with a kaleidoscope of supervisors (male and female), subject 17 to a variety of regional policies that all differed.” 18 (internal quotation marks and citation omitted). 19 Additionally, the plaintiffs in Dukes were challenging 20 “literally millions of employment decisions.” 21 2556 n. 9. 22 with Judge Sand’s astute observation in Chen-Oster v. 23 Goldman, Sachs & Co., 2012 WL 2912741 (S.D.Cal. July 17, 24 2012): 25 26 27 28 Dukes was “one of the most Moreover, Id. Id. at 2552, Given this factual scenario, the court agrees The Supreme Court suggested (when not explicitly stating) that the sheer size of the class and the vast number and diffusion of challenged employment decisions was key to the commonality decision. This makes a great deal of sense when the purpose of the commonality enquiry is to identify ‘some glue holding the - 30 - alleged reasons for all of [the challenged] employment decisions together.’ 1 2 3 Id. at *3 (quoting Dukes, 131 S.Ct. at 2552 (emphasis 4 omitted)). The present case is vastly different. 5 There are not 6 millions of potential plaintiffs here. Nor are the 7 plaintiffs scattered across the nation; they all work or 8 worked at Arizona Food City stores. And, they are not 9 challenging “millions of employment decisions;” rather, at 10 this point, they are only challenging Bashas’ decision to pay 11 its employees pursuant to its two-tiered wage scales. 12 factual distinctions reinforce this court’s conclusion that 13 plaintiffs have met their burden of showing commonality as to 14 the equal pay claim. 15 3. These Typicality15 16 Next, plaintiffs must show that “the claims or defenses 17 of the representative parties [are] typical of the claims or 18 defenses of the class.” 19 argues that the claims of named plaintiffs Estrada and 20 Martinez are not typical of those of the putative class 21 because there is no evidence of a shared “common 22 experience[.]” Bashas’ Response to Motion for Fed. R. Civ. P. 23(a)(3). Bashas’ Class 23 24 25 26 27 28 15 In Parra I, this court addressed typicality, but only with respect to the working conditions claim. Indeed, after finding a lack of commonality as to the equal pay claim, the court explicitly noted that it had “not reached the other requirements for class certification on this [equal pay] issue, and express[ed] no opinion on whether Plaintiffs could satisfy” the requirements of typicality and adequacy as to that claim. Parra I, 2005 WL 6182338, at *16, n. 30 (emphasis added). Moreover, given the Ninth Circuit’s remand, as earlier noted, “for consideration of the remaining class certification factors[,]” undeniably the issue of whether, inter alia, plaintiffs have shown typicality as to their pay claim is properly before the court now. - 31 - 1 Certification (“Def.’s Resp. MCC”) (Doc. 190) at 45:9. As 2 to plaintiff Martinez alone, Bashas’ argues that because she 3 works as a Food City Tortilla Ria Clerk, and that position 4 has “no comparable position in Bashas’ or A.J.’s stores[,]”16 5 her pay claim is “unique to her,” and thus not typical for 6 Rule 23(a)(3) purposes. 7 61:12. 8 did not exhaust her administrative remedies, that is a 9 defense unique to her, thus precluding a finding that she is Id. at 59:21 (footnote omitted); and Bashas’ also argues that because plaintiff Martinez 10 a typical class representative.17 11 arguments pertaining solely to plaintiff Martinez first. a. 12 The court will address the Aurelia Martinez 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Some preliminary clarification is necessary. Bashas’, like the plaintiffs, declares that plaintiff Martinez has worked in “one position, tortilleria [sic] clerk, since 1991.” Def.’s Resp. MCC (Doc. 190) at 59:18-21 (emphasis in original) (citation omitted); Plaintiffs’ Motion for Class Certification (“Pls.’ MCC”) (Doc. 159) at 14:23, ¶ 12 (citation omitted) (“Aurelia Martinez has been employed as a tortilleria [sic] clerk at a Food City store in Phoenix since July 1991.”) The record belies this statement, revealing that Ms. Martinez worked both as a Tortilla Ria Clerk and as Tortilla Machine Operator. This is noteworthy because a basic tenet of Bashas’ argument that plaintiff Martinez’s pay claim is atypical is that she works, and has always worked, as a Tortilla Ria Clerk. From Bashas’ Payroll Status Authorization form, it appears, however, that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance Evaluation form shows that she held that position at least from January, So although there is 2001 to January, 2002. Id., exh. B thereto. uncertainty on this record as to exactly when Ms. Martinez first became employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine Operator, clearly she held both positions at different times during the class period. However, because the parties’ are focusing exclusively upon Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court. 17 Like commonality, typicality “tend[s] to merge with the adequacySo of-representation requirement[.]” Dukes, 131 S.Ct. at 2551 n. 5. although Bashas’ presents these arguments when discussing adequacy, the court will address them now – in the context of typicality. Cf. Ellis I, 657 F.3d at 974 (citation omitted) (vacating “ruling as to ‘typicality’ . . . because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that questions[]”). - 32 - An integral part of Bashas’ exhaustion argument is that 1 2 because Ms. Martinez’s pay claim is unique, plaintiff 3 Estrada’s Equal Employment Opportunity Commission (“EEOC”) 4 charge, among others, did not provide Bashas’ with adequate 5 notice of her pay claim. 6 exhaustion argument per se, the court first must decide 7 whether plaintiff Martinez’s pay claim is unique. i. 8 So before considering Bashas’ “Tortilla Ria Clerk”18 Bashas’ argues that plaintiff Martinez’s pay claim is 9 10 “unique to her[]” because she works as a Food City Tortilla 11 Ria Clerk, and that position has “no comparable position in 12 Bashas’ or A.J.’s stores.”19 13 61:12; and 14 plaintiffs assert that a Tortilla Ria Clerk is the Def.’s Resp. MCC (Doc. 190) at 59:21 (footnote omitted). Disagreeing, 15 16 17 18 See, e.g., 18 19 20 21 22 23 24 25 26 27 28 This designation is taken directly from Bashas’ wage scales. Def.’s exh. 1 (Proulx Aff.), exh. G thereto at BA 04350. 19 Some preliminary clarification is necessary. Bashas’, like the plaintiffs, declares that plaintiff Martinez has worked in “one position, tortilleria [sic] clerk, since 1991.” Def.’s Resp. MCC (Doc. 190) at 59:18-21 (emphasis in original) (citation omitted); Pls.’ MCC (Doc. 159) at 14:23, ¶ 12 (citation omitted) (“Aurelia Martinez has been employed as a tortilleria [sic] clerk at a Food City store in Phoenix since July 1991.”) The record belies this statement, revealing that Ms. Martinez worked both as a Tortilla Ria Clerk and as Tortilla Machine Operator. This is noteworthy because a basic tenet of Bashas’ argument that plaintiff Martinez’s pay claim is atypical is that she works, and has always worked, as a Tortilla Ria Clerk. From Bashas’ Payroll Status Authorization form, it appears, however, that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance Evaluation form shows that she held that position at least from January, So although there is 2001 to January, 2002. Id., exh. B thereto. uncertainty on this record as to exactly when Ms. Martinez first became employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine Operator, clearly she held both positions at different times during the class period. However, because the parties’ are focusing exclusively upon Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court. - 33 - 1 “equivalent” of a Donut Fryer,20 and thus, plaintiff 2 Martinez’s pay claim is typical of the putative class 3 members. 4 Pls.’ Reply (Doc. 207) at 27:9 (citation omitted). In resolving this dispute, the court is fully aware of 5 its earlier comment that “[w]ithout further information[]” it 6 could not “determine whether Martinez’s position [as a 7 Tortilla Ria Clerk] has a comparable counterpart in 8 Defendant’s other stores.” 9 The court immediately noted, however, that “[r]egardless, Parra I, 2005 WL 6182338, at *18. 10 Martinez claims she has suffered from the same alleged 11 disparate working conditions as the proposed class members.” 12 Id. (emphasis added). 13 that Ms. Martinez sufficiently satisfie[d] the typicality 14 requirement of Rule 23(a)(3) on that issue[,]” i.e. the 15 working conditions claim. 16 So “[w]hile close,” this court found Id. (emphasis added). In Parra I, this court was able to decide the typicality 17 issue as to Ms. Martinez’s working conditions claim without 18 resolving whether a Food City Tortilla Ria Clerk has a 19 “comparable counterpart” in A.J.’s or Bashas’ stores. 20 Therefore, the court’s earlier quoted comment is, at most, 21 non-authoritative dictum, allowing it to visit that issue 22 against the backdrop of plaintiff Martinez’s pay claim. Probing more deeply into the record, as part of its 23 24 25 26 27 28 20 More recently, plaintiffs took the position that Martinez’s “position as a tortilla clerk is equivalent to a higher paid position, donut fryer, in the Bashas’ stores.” Pls.’ Supp. Br. (Doc. 302) at 20:3-4 (emphasis added) (citations and footnote omitted). Plaintiffs’ cites do not support that proposition, however. Moreover, as Bashas’ pay scales, among other things, reveal, and as plaintiffs argue above, Bashas’ places Tortillaria Clerks and Donut Fryers in the same wage bracket, undermining this assertion that Donut Fryers are in a “higher paid position.” - 34 - 1 obligation to rigorously analyze whether the prerequisites of 2 Rule 23(a) have been met, convinces this court that plaintiff 3 Martinez’s pay claim is typical of those of the putative 4 class. 5 differentiate between “Tortilla Ria Clerk[s] & Donut 6 Fryer[s]” [.]” See, e.g., Larkin Decl’n (Doc. 161), exh. 13 7 thereto at BA 00196; exh. 14 thereto at BA 00206. 8 the duties differ, Bashas’ repeatedly classifies a Tortilla 9 Ria Clerk and a Donut Fryer together in one, single category Most significantly, Bashas’ own pay scales do not Even if 10 for wage purposes. See Bashas’ exh. 1 (Proulx Aff.), exh. G 11 thereto at BA 04350;, exh. H thereto at BA 04340; exh. I 12 thereto at BA 04321; exh. J thereto at BA 04283; exh. K 13 thereto at 2; exh. L thereto at BA 04256 - 04258; exh. M 14 thereto at BA 08281 - 0828_;21 BA 08293; BA 08295. 15 designation is not a one-time aberration. The joint 16 designation for “Tortillaria Clerk, [and] Donut Fryer” is 17 found elsewhere, on “Bashas’ Wage and Employee Benefit 18 Program[.]” 19 at BA 04231. 20 This joint Larkin Supp. Decl’n (Doc. 196), exh. 10 thereto Tortillaria Clerk and Donut Fryer are not the only joint 21 designations for wage purposes. Bashas’ also jointly places 22 a “Lead Deli Clerk[]” and a “Cappuccino Manager” – two 23 positions which on the face of it seem to have little in 24 common - into one wage category. 25 BA 04231. 26 whatever reasons, Bashas’ deems so closely analogous to 27 warrant placing them in the same wage category. See id., exh. 10 thereto at Thus, there are certain job positions which, for Had Bashas’ wanted to distinguish between Tortillaria 28 21 The Bates stamp number is obstructed on the copy provided to the court. - 35 - 1 Clerks and Donut Fryers, it could have, as it did for 2 Tortilla Production Supervisors and Tortilla Machine 3 Operators. 4 wages; and, for the most part, employees in those positions 5 are paid more than employees in the Tortilla Ria Clerk and 6 Donut Fryer category. 7 The fact remains, however, that Bashas’ did not make any 8 distinction in terms of wages with respect to those two 9 positions. 10 Those are separate job listings, with separate See e.g., exh. 10 thereto at BA 04234. For these reasons, based upon the record as presently 11 constituted, to the extent Ms. Martinez is premising her 12 equal pay claim upon her tenure as a Food City Tortilla Ria 13 Clerk, her pay claim is typical of the pay claims of the 14 putative class. 15 as it must, focused on the 16 the class representative, and not to the specific facts from 17 which it arose or the relief sought.” 18 at 984 (internal citation and quotation marks omitted) 19 (emphasis added). 20 scenarios resulting in a claim of the same nature as other 21 class members does not defeat typicality.” 22 (citation omitted). Having found that plaintiff Martinez’s 23 pay claim is typical of those of the class, the next issue is 24 whether, as Bashas’ argues, her failure to exhaust her In reaching this conclusion the court has, nature of the claim or defense of See Ellis I, 657 F.3d That is because “[d]iffering factual 25 26 27 28 - 36 - Id. at 985, n. 9 1 administrative remedies is a unique defense which would 2 defeat typicality. 3 ii. Exhaustion of Administrative Remedies 4 A plaintiff must file a timely charge of discrimination 5 with the EEOC as a prerequisite to bringing a Title VII 6 action. 7 Plaintiff Estrada filed such a charge and exhausted his 8 administrative remedies, see Bashas’ exh. 40, and that 9 plaintiff Martinez did not. 42 U.S.C. § 2000e-5(e). There is no dispute that Bashas’ argues that plaintiff 10 Martinez’s failure to exhaust her administrative remedies is 11 a “defense unique” to her, which bars her from serving as a 12 class representative as to any Title VII claims. Def.’s Resp. 13 MCC (Doc. 190) at 58:21, n. 39.22 Accurately reciting that notice is the underlying purpose 14 15 of Title VII’s exhaustion requirement, see B.K.B. v. Maui 16 Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), plaintiffs 17 invoke the “single filing” or “piggyback” rule. 18 exception to exhaustion, “an individual who has not filed an 19 administrative charge can ‘piggyback’ on an EEOC complaint 20 filed by another person who is similarly situated.”23 Under that 21 22 23 24 25 26 27 28 22 Section 1981 does not contain a similar exhaustion requirement. Therefore, Bashas’ failure to exhaust argument is limited to plaintiffs’ Title VII claims. 23 In Parra I, when discussing typicality as to the working conditions claim, this court mentioned in passing that although Ms. Martinez had not exhausted her administrative remedies, she “may ‘piggyback’ onto Estrada’s efforts and go forth with her Title VII claim.” Parra I, 2005 WL 6182338, at *17 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). On its face, that quote might appear to be dispositive of the exhaustion argument herein. However, it is not. There are two reasons for addressing the exhaustion argument anew at this juncture. First, in Parra I, this court expressly declined to reach the issue of typicality as to the equal pay claim. See n. 15 supra. Second, although this court is not alone in citing footnote 8 in Albemarle for the - 37 - 1 E.E.O.C. v. Giumarra Vineyards Corp., 2010 WL 3220387, at *4 2 (E.D.Cal. Aug. 13, 2010) (footnote and citation omitted). 3 Plaintiffs contend that Ms. Martinez is similarly situated to 4 “[s]everal [unspecified] members of the proposed class [who] 5 filed EEOC charges against [Bashas’] all alleging class 6 discrimination.” 7 Plaintiffs thus reason that as a result of those EEOC 8 charges, Bashas’ had “notice of the ‘substantive claims being 9 brought against [it] [and] of the number and generic Pls.’ Reply (Doc. 207) at 25:7-9. 10 identities of the potential plaintiffs who may participate in 11 the judgment.’” Id. at 25:9-12 (quoting American Pipe & 12 Construction Co. v. Utah, 414 U.S. 538, 555, 94 S.Ct. 756, 38 13 L.Ed.2d 713 (1974)). 14 argue that Ms. Martinez’s failure to exhaust her 15 administrative remedies is not a defense unique to her. 16 Named plaintiff Martinez thus meets Rule 23(a)(3)’s 17 typicality requirement irrespective of her failure to exhaust 18 her administrative remedies, plaintiffs reason. Given that purported notice, plaintiffs 19 Bashas’ retorts that the other EEOC charges did not 20 provide the requisite notice because those charges “were not 21 detailed, did not give [it] notice of the claims of the other 22 23 24 25 26 27 28 proposition that unnamed class members need not file charges for Title VII suits to proceed, see, e.g., Dukes v. Wal-Mart Stores, Inc., 2002 WL 32769185, at *7 n. 4 (N.D.Cal. Sept. 9, 2002) (“Wal-Mart Stores”), a close reading of Albemarle reveals that it does not speak directly to the issue squarely before the court now: whether a named plaintiff who has not exhausted her administrative remedies can, nonetheless, be an adequate representative under Rule 23(a)(4). Rather, footnote 8 answers in the affirmative the issue of whether “backpay may be awarded on a class basis even without exhaustion of administrative procedures by the unnamed class members.” See Albemarle, 422 U.S. at 414 n. 8, 95 S.Ct. 2362 (emphasis added). - 38 - 1 class members, and in particular, could not have possibly 2 given [it] notice of Martinez’ claims, because of their 3 uniqueness.” 4 (citation omitted). 5 factual support. 6 Def.’s Resp. MCC (Doc. 190) at 58, n. 39:26-27 Bashas’ argument lacks both legal and In arguing that exhaustion of administrative remedies is 7 an essential predicate to serving as a class representative, 8 Bashas’ relies upon this single sentence from Inda v. United 9 Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977): “[I]f one brings suits on his own behalf, or as a named plaintiff on behalf of a class, he must have secured a right to sue by timely following the procedures set forth in Title VII.” 10 11 12 13 Id. at 559. 14 Supercargoes & Checkers, 543 F.2d 1259 (9th Cir. 1976), 15 “foreclose[s]” Bashas’ Inda based argument. 16 (Doc. 207) at 24:9. 17 plaintiff had filed an EEOC charge, the Ninth Circuit 18 observed, “[t]his does not preclude representation of the 19 class by the other named plaintiffs or relief for the class.” 20 Gibson, 543 F.2d at 1266 n. 13 (emphasis added) (citing 21 Franks v. Bowman Transp. Co., 424 U.S. 747, 771, 96 S.Ct. 22 1251, 1267, 47 L.Ed.2d 444 (1976); Albemarle, 422 U.S. at 414 23 n.8, 95 S.Ct. 2362)). 24 Plaintiffs counter that Gibson v. Local 40, Pls.’ Reply MCC In Gibson, noting that only one As plaintiffs strongly imply, Inda does not govern here, 25 but, then again, neither does Gibson. 26 Bashas’ for relying upon Inda, which it characterizes as 27 “dictum[,]” and because since 1977, when Inda was decided, 28 “[n]o Ninth Circuit case . . . has read Inda to impose . . . - 39 - Plaintiffs fault 1 a requirement[]” that each named plaintiff must exhaust their 2 administrative remedies to serve as a class representative. 3 See Pls.’ Reply (Doc. 207) at 24:24-25. 4 plaintiffs’ reliance upon Gibson is misplaced for nearly 5 identical reasons. 6 plaintiffs are relying also is dictum. 7 years since Gibson, it has never been read to support the 8 view that a named plaintiff need not exhaust their 9 administrative remedies.24 Somewhat ironically, The portion of Gibson upon which And, in the 37 Thus, there is no credence to 10 plaintiffs’ argument that Gibson “forecloses” Bashas’. 11 Bashas’ reliance upon Inda is equally unavailing. 12 past 36 years, the Ninth Circuit has never invoked Inda to 13 require each named plaintiff to individually exhaust their 14 administrative remedies. 15 [the] language [quoted above] in Inda is not dicta, it has 16 been restricted to its facts where a plaintiff sought to rely 17 on an administrative charge of an individual employee in a 18 separate action, and where the EEOC charge did not give 19 sufficient notice that other similarly-situated persons would 20 also be affected.” 21 Inc., 644 F.Supp.2d 1249, 1265 n. 11 (E.D.Cal. 2009) In the More importantly,“to the extent E.E.O.C. v. Cal. Psychiatric Transitions, 22 24 23 24 25 26 27 28 This is not surprising given the Gibson Court’s reference to Franks and Albemarle. Those two Supreme Court cases considered whether unnamed plaintiffs can recover under Title VII; both found that they could. Albemarle, 422 U.S. at 414 n. 8, 95 S.Ct. 2362 (“reject[ing] th[]e contention[] . . . that no backpay can be awarded to those unnamed parties in the plaintiff class who have not themselves filed charges with the EEOC[]”); Franks, 424 U.S. 771, 96 S.Ct. 1251 (unnamed class members who had been discriminated against by their employer, but who had not filed administrative charges with the EEOC, were not precluded from relief in the form of retroactive seniority). Neither of those decisions supports the view expressed in Gibson, however, and upon which plaintiffs so heavily rely, that an unnamed plaintiff, who has not filed an EEOC charge, may serve as class representative. - 40 - 1 (citations omitted). More recently, citing to those two 2 district court decisions, the Ninth Circuit left no doubt 3 that “Inda should be limited to its specific facts – where a 4 plaintiff sought to rely on an administrative charge . . . of 5 an individual employee in a separate action.” 6 County of Orange, 682 F.3d 1126, 1136-1137 (9th Cir. 2012) 7 (citations omitted). 8 eviscerates Bashas’ argument, premised solely on Inda, that 9 Ms. Martinez is not an adequate class representative because Harris v. That express limitation on Inda 10 she did not exhaust her administrative remedies under Title 11 VII. The Ninth Circuit’s Harris decision has relevancy here 12 13 beyond rejecting Inda’s restrictive interpretation of the 14 single filing rule. 15 action on behalf of thousands of Retirees alleging that the 16 “County’s restructuring of its retiree medical program[,]” 17 violated, inter alia, their constitutional rights and the 18 Fair Employment and Housing Act (“FEHA”). 19 at 1130. 20 an administrative charge, but it “did not state that it was 21 ‘on behalf of’ other class members.” 22 Therefore, the district court found that the Retirees did not 23 exhaust their administrative remedies under the FEHA.25 24 appeal, “[t]he Retirees argue[d] that the single filing rule 25 permit[ted] them to ‘piggyback’ on the timely filed 26 administrative complaint . . . of one of the named The Harris plaintiffs filed a class Harris, 682 F.3d One of the class representatives had timely filed Id. at 1131. On 27 28 25 Given the absence of relevant authority regarding the applicability of the single filing rule in FEHA actions, the court looked to Title VII cases, among others. Harris, 682 F.3d at 1136. - 41 - 1 2 plaintiffs.” Id. at 1135. Agreeing, the Ninth Circuit reiterated that the “single 3 filing rule is based on the observation that it would be 4 duplicative and wasteful for complainants with similar 5 grievances to have to file identical notices of intent to sue 6 with a governmental agency.” 7 Crocker Nat’l Bank, 600 F.2d 754, 760 n. 15 (9th Cir. 1979)); 8 see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 9 1110 (10th Cir. 2001) Id. at 1136 (citing Bean v. (“The policy behind the single filing 10 rule is that it would be wasteful, if not vain, for numerous 11 employees, all with the same grievance, to have to process 12 many identical complaints with the EEOC.”) Consequently, even 13 though the Harris administrative complaint did not indicate 14 that it was a “class action” or “‘on behalf of others 15 similarly situated[,]’” nonetheless, the Court found it was 16 “sufficient to establish exhaustion of administrative 17 remedies for all class members.” 18 (footnote omitted). 19 plaintiffs, who had not filed administrative complaints were 20 “part of the same action asserted by” the plaintiff who had 21 timely filed such a complaint. 22 Id. at 1136 and 1137 That is because the other named Id. at 1137. Here, as fully discussed herein, Ms. Martinez is “part of 23 the same action asserted” by Mr. Estrada who did timely file 24 an EEOC charge. 25 defendant employer in Harris, Bashas’ had explicit, 26 unequivocal notice of the existence of other similarly 27 situated class members, such as Ms. Martinez. 28 such notice because Mr. Estrada Furthermore, in sharp contrast to the - 42 - Bashas’ had unambiguously declared that 1 he was “bring[ing] this charge on behalf of [him]self and 2 similarly situated Hispanic employees who [sic] [he] 3 believe[s] receive less pay and poorer assignments than 4 American-born, white employees.” 5 190), exh. 40 thereto. 6 additional notice because “[a]t least eight class charges of 7 race and national discrimination have been filed against [it] 8 by current proposed plaintiffs and class member witnesses in 9 this action.” Def.’s Resp. MCC (Doc. Not only that, arguably Bashas’ had Pls.’ Reply to Def.s’ Resp. to Mot. for Leave 10 to File First Amended Complaint (Doc. 103) at 5:10-12. 11 if, as in Harris, the single filing rule can be applied 12 although the administrative complaint was silent as to 13 whether it was a class action or was being brought on behalf 14 of others similarly situated, surely Ms. Martinez can rely 15 upon that rule given that Mr. Estrada’s EEOC charge was 16 unequivocal and explicit on that point. 17 Thus, Wal-Mart Stores, further bolsters a finding that Ms. 18 Martinez may “piggy-back” onto the EEOC charge of Mr. 19 Estrada and others to establish exhaustion of her 20 administrative remedies. 21 to amend to add two plaintiffs who had never filed EEOC 22 charges. 23 charge of a named representative who had “filed charges on 24 her own behalf as well as for others similarly situated.” 25 Wal-Mart Stores, 2002 WL 32769185, at *5. 26 however, that named plaintiff was dismissed for failure to 27 meet Title VII’s venue requirements and she became a putative 28 class member. There, the plaintiffs sought leave The moving plaintiffs were relying upon the EEOC Previously, Among other reasons, including the Supreme - 43 - 1 Court’s recognition that “EEOC charge-filing requirements are 2 . . . equitable in nature,” and because “notice was afforded 3 to Wal-Mart in accordance with the policy goals of Title 4 VII,” the Wal-Mart Stores court found “that all named 5 plaintiffs in a Title VII class action need not individually 6 exhaust EEOC charge-filing requirements prior to joining a 7 class action.” 8 further reasoned that “the policy underpinnings of Title VII 9 and the single filing rule set forth in Albermarle – notice Id. at *7 (emphasis added). The court 10 to the defendant – is fully satisfied where at least one 11 plaintiff has filed a charge of discrimination alleging broad 12 class claims; and (2) requiring additional identical filing 13 serves no purpose other than to ensure duplicative 14 administrative proceedings.” 15 omitted). 16 plaintiff may rely on the administrative compliance of 17 otherwise compliant fellow named representatives.” Id. (citation and footnote The court thus held that “a proposed named Id. 18 As can be seen, “the analytical touchstone of the single 19 filing rule is whether the company had adequate notice of the 20 grievance to provide a basis for conciliation.” 21 Vineyards, 2010 WL 3220387, at *8. 22 adequate to support piggybacking under the single filing rule 23 if it contains sufficient information to notify prospective 24 defendants of their potential liability and permit the EEOC 25 to attempt informal conciliation of the claims before a 26 lawsuit is filed.” 27 F.Supp.2d at 1265 (citation omitted). 28 parties’ claims need not be factually identical to those Giumarra “A charge will be Cal. Psychiatric Transitions, 644 - 44 - However,“[t]he 1 timely filed, but instead need to be [of] sufficient 2 similarity as to prevent frustration of Title VII policies.” 3 Id. at 1266 (citation omitted). 4 intends to “give effect to the remedial purposes of [Title 5 VII] and to not exclude other suitable plaintiffs from [a 6 Title VII] class action simply because they have not 7 performed the useless act of filing a charge.” 8 Vineyards, 2010 WL 3220387, at *4 (internal quotation marks 9 and citation omitted). 10 The single filing rule thus Giumarra “[L]ook[ing] to the predicate or ‘actually filed’ EEOC 11 charge[]” of Mr. Estrada, id. (footnote and citations 12 omitted), it is apparent that that charge gave Bashas’ the 13 requisite notice. 14 Mr. Estrada’s charge informed Bashas’, inter alia, of the 15 nature of his pay claim: 16 17 18 19 20 21 22 23 24 After identifying himself as “Hispanic[,]” While employed by Bashas’, Inc. I believe that I have been discriminated against based upon my national origin and race with respect to pay[.] Although the job I perform at Food City is substantially the same job as the work performed by my counterparts at Bashas’, I am paid less on an hourly basis than the similarly situated employees at Bashas’. It is my belief and understanding that most of the employees at Bashas’ are American born and Caucasian. I believe I am paid less because of my national origin, Mexican, and my race, Hispanic. Def.’s Resp. MCC (Doc. 190), exh. 40. Further, Mr. 25 Estrada explicitly states that he was bringing his EEOC 26 charge “on behalf of [him]self and similarly situated 27 Hispanic employees who[m] [he] believe[s] receive less pay 28 and poorer assignments than American-born, white employees.” - 45 - 1 2 Id. Similarly, the FAC alleges that Ms. Martinez, like Mr. 3 Estrada, is a Hispanic hourly Food City employee, who was 4 paid less than her Caucasian counterparts at Bashas’ and 5 A.J.’s. 6 foregoing, Bashas’ argument that it lacked notice of Ms. 7 Martinez’s pay claim is wholly unavailing. Further, for 8 substantially the same reasons outlined in section A(3)(a)(i) 9 above, Ms. Martinez’s pay claim is not so unique from those FAC (Doc. 116) at 3, ¶ 8. In light of the 10 of Mr. Estrada so that it can be said that Bashas’ lacked 11 notice of her pay claim on that basis. 12 “uniqueness” of Ms. Martinez’s pay claim does not vitiate 13 that notice. 14 Hence, the asserted Taking another but equally unpersuasive tack, Bashas’ 15 contends that “[i]f Estrada (the only other named Plaintiff 16 now suing on behalf of the class) is dismissed from the case 17 or deemed inappropriate as class representative, Martinez 18 could not take his place.” Def.’s Resp. MCC (Doc. 190) at 19 57:19-21 (citation omitted). 20 Mr. Estrada cannot serve as a class representative, that 21 would not “negate notice.” 22 22 (citation omitted). 23 Ms. Martinez from serving as class representative even if, 24 ultimately, Mr. Estrada cannot. 25 Plaintiffs respond that even if Pls.’ Reply (Doc. 207) at 25:21- Hence, there is no basis for barring Plaintiffs have the sounder argument. In the first 26 place, Bashas’ primary authority, Robinson v. Sheriff of Cook 27 County, 167 F.3d 1155 (7th Cir. 1999), as well as the two 28 - 46 - 1 cases to which it cites,26 are out of Circuit non-binding 2 precedent. Second, all three cases are factually 3 distinguishable, further diminishing their precedential 4 value.27 5 challenged Mr. Robinson’s suitability as a class 6 representative relying upon evidence of “his very poor 7 employment record[.]” Robinson, 167 F.3d at 1156. 8 basis, the district court rejected Robinson as the class 9 representative, but allowed another individual “to join the In Robinson, also a Title VII action, the defendant On that 10 suit as a plaintiff and take Robinson’s place as class 11 representative.” 12 it was later discovered that that second individual had not 13 filed an EEOC charge, the district court dismissed her claim 14 and “disqualified her from serving as Robinson’s successor as 15 class representative. “ Id. at 1156. 16 proceeded with the original named plaintiff’s individual Robinson, 167 F.3d at 1158; and 1156. When The district court 17 26 18 19 20 21 22 23 24 25 26 27 28 Wakeen v. Hoffman House, Inc., 724 F.2d 1238 (7th Cir. 1983); and Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987). 27 Wakeen involved a very different situation than the present case. In Wakeen, the Seventh Circuit held “that a class member who does not meet the procedural prerequisites for waging a Title VII suit may not use the guise of a motion to intervene to take over as the sole class representative for someone who initiates but is not legitimately able to continue a class action.” Wakeen, 724 F.2d at 1246. In fact, in Byas v. Union Pacific R.R. Co., 2007 WL 1021976 (S.D.Ill. 2007), in a case not unlike the present one, the court held that “[t]he narrow holding of Wakeen does not apply in the instant case, where there are three named plaintiffs, one of whom has satisfied EEOC filing requirements.” Id. at *3 (emphasis added). Griffin is likewise readily distinguishable from the present case. There, the Eleventh Circuit held that an intervening plaintiff could not invoke the single filing rule because he was “not sufficiently similarly situated[]” to the plaintiff who had timely filed an adequate EEOC As discussed above, plaintiff complaint. Griffin, 823 F.2d at 1493. Martinez’s pay claim is sufficiently similar to plaintiff Estrada’s. Moreover, unlike in Griffin, plaintiff Martinez is not seeking intervention. - 47 - 1 claim, dismissing it after a bench trial. On appeal, the plaintiffs argued, inter alia, that the 2 3 class should have been certified with both of them as “class 4 representatives irrespective of the deficiencies in their 5 claims[.]” Id. at 1157. 6 certification, the 7 that because Robinson had been rejected as the class 8 representative, “there was no class action when [the second 9 individual] was added to the suit.” 10 Affirming denial of the class Robinson Court found dispositive the fact Id. at 1158. Expanding upon that reason, then Chief Judge Posner wrote: There was no class representative who had dropped the baton for her to pick up; Robinson had never been approved as the class representative. [The second individual’s] suitability as class representative had thus to be determined independently of him. 11 12 13 14 Bashas’ asserts that Ms. “Martinez would fail [such] an 15 Id. 16 independent evaluation of her suitability to be class 17 representative and should not be approved as one.” 18 Resp. MCC (Doc. 190) at 58:11-12 (footnote omitted). 19 20 21 22 23 24 25 26 Def.’s To support this assertion, Bashas’ seizes upon the following language from Robinson: In effect the appeal asks us to graft [the original class representative’s] timely filing with the EEOC onto [the successor’s] untimely but not-yetshown-to-be-unmeritorious discrimination case to create a composite plaintiff to represent the class of blacks denied employment by the defendant. We cannot find any basis in law or good sense for such ghastly surgery. Neither plaintiff is a suitable class representative, and zero plus zero is zero. 27 28 Id. at 58:2-5 (quoting Robinson, 167 F.3d at 1157) (other - 48 - 1 citations omitted). 2 distinguishable, it does nothing to advance Bashas’ argument, 3 however. 4 Because Robinson is readily The above quote was made in the context of “a named 5 plaintiff whose claims were particularly deficient-in fact, 6 they had been dismissed-and who was attempting to represent a 7 class of people with potentially plausible claims.” 8 Wilson v. Delta-T Group, Inc., 270 F.R.D. 596, 605 (S.D.Cal. 9 2010) (emphasis in original). Norris- That is not the situation 10 here. There has been no showing at this juncture that Ms. 11 Martinez’s pay 12 What is more, Robinson supports the view that “[a] plaintiff 13 should not be disqualified as a class representative simply 14 because the “defendant may have good defenses” against that 15 plaintiff.” 16 8601203, at *2 (N.D.Cal. Dec. 7, 2011) (quoting 17 Norris–Wilson, 270 F.R.D. at 605 (quoting in turn Robinson, 18 167 F.3d at 1158) (emphasis in original). 19 plaintiff be “disqualified as class representative if [s]he 20 may fail to prove h[er] case[.]” Robinson, 167 F.3d at 1158 21 (citation omitted) (emphasis in original). 22 Court made clear, “[o]nly if a plaintiff’s ‘claim is a clear 23 loser at the time [she] asks to be made class representative’ 24 should she be disqualified, because in that case, approving 25 her ‘as class representative can only hurt the class.’” 26 Perez, 2011 WL 8601203, at *2 (quoting Robinson, 167 F.3d at 27 1158) (emphasis in original)). 28 showing here. claim is “particularly deficient[.]” See id. Perez v. State Farm Mut. Auto. Ins. Co., 2011 WL Nor should a named As the Robinson There has been no such - 49 - Thus, the primary purpose of filing an EEOC charge -- 1 2 notice -- was afforded to Bashas’, even though named 3 plaintiff Martinez did not herself file such a charge. 4 Estrada’s EEOC charge, and others, “contain[ed] sufficient 5 information to notify [Bashas’] of [its] potential liability 6 and permit the EEOC to attempt informal conciliation of the 7 claims before a lawsuit is filed.” 8 Transitions, 644 F.Supp.2d at 1265 (citation omitted). 9 Therefore, because “the purposes behind the filing Mr. See Cal. Psychiatric 10 requirement [we]re satisfied” in this case, “no injustice or 11 contravention of congressional intent occurs by allowing [Ms. 12 Martinez] [to] piggyback[]’” on Mr. Estrada’s charge. 13 Giumarra Vineyards, 2010 WL 3220387, at *5 (quoting Thiessen, 14 267 F.3d at 1110). 15 charge and others, see Def.’s Resp. MCC (Doc. 190), exh. 40 16 thereto, gave Bashas’ notice of the pay claim against it, Ms. 17 Martinez was not required to perform the “useless act” of 18 filing her own separate charge. 19 3220387, at *4 (“An act of filing an EEOC charge is deemed 20 ‘useless’ in situations in which the employer is already on 21 notice that Plaintiffs may file discrimination claims, thus 22 negating the need for additional filings.”) (internal 23 quotation marks and citation omitted). 24 plaintiff Martinez can avail herself of the single filing 25 rule and piggyback on the EEOC charges of other plaintiffs, 26 such as Mr. Estrada.28 27 28 See In fact, because Mr. Estrada’s EEOC 28 Giumarra Vineyards, 2010 WL As discussed above, This does not foreclose the possibility that if, at a later juncture, plaintiff Martinez’s ability to represent the class is “found wanting, the court may seek a substitute representative or decertify the class.” See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 416, 100 S.Ct. - 50 - 1 Accordingly, because plaintiff Martinez’s pay claim is 2 not subject to the defense of failure to exhaust her 3 administrative remedies, that defense “cannot be a reason for 4 finding that the typicality requirement is not satisfied.” 5 See Evon, 688 F.3d at 1030 (because defendant did “not 6 qualify for the bona fide error defense as a matter of law, 7 . . . whether [plaintiff’s] claim is subject to this 8 affirmative defense cannot be a reason for finding that the 9 typicality requirement is not satisfied[]”). For that same 10 reason, there is no “danger that absent class members will 11 suffer” because plaintiff Martinez “is preoccupied with [a] 12 defense[] unique to [her].’” See Ellis I, 657 F.3d at 984 13 (quoting Hanon, 976 F.2d at 508 (other quotation marks and 14 citation omitted). 15 there also is no danger that plaintiff Martinez’s failure to 16 exhaust her administrative remedies will “create a 17 distraction that will become a ‘major focus of the 18 litigation.’” See Ellis II, 285 F.R.D. at 534. 19 neither plaintiff Martinez’s pay claim nor her failure to 20 exhaust her administrative remedies are barriers to a finding 21 of typicality. 22 whether 23 23(a)(3)’s typicality standard given what Bashas’ describes 24 as the lack of 25 See Def.’s Resp. MCC (Doc. 190) at 45:9. 26 . . . Finally, based upon the rulings herein, In short, The issue still remains, though, as to plaintiffs Estrada and Martinez can meet Rule evidence of a shared “common experience[.]” 27 28 1202, 63 L.Ed.2d 479 (1980) (citations omitted) (“If the named plaintiff’s own claim becomes moot after certification, the court can re-examine his ability to represent the interest of the class members.”) - 51 - b. 1 Gonzalo Estrada and Aurliea Martinez 2 Typicality, like commonality, “serve[s] as [a] 3 guidepost[] for determining whether under the particular 4 circumstances maintenance of a class action is economical and 5 whether the named plaintiff’s claim and the class claims are 6 so interrelated that the interests of the class members will 7 be fairly and adequately protected in their absence.” 8 131 S.Ct. at 2511, n. 5 (quoting Falcon, 457 U.S. at 157, n. 9 13, 102 S.Ct. 2364). Dukes, “The test of typicality is whether 10 other members have the same or similar injury, whether the 11 action is based on conduct which is not unique to the named 12 plaintiffs, and whether other class members have been injured 13 by the same course of conduct.” 14 (internal citation and 15 differently, under Rule 23(a)(3)’s “permissive standards, 16 representative claims are ‘typical’ if they are reasonably 17 co-extensive with those of absent class members; they need 18 not be substantially identical.” 19 150 F.3d 1011, 1026 (9th Cir. 1998). Ellis I, 657 F.3d at 984 quotation marks omitted). Put Hanlon v. Chrysler Corp., That test for typicality is easily met here, despite 20 21 Bashas’ contrary protestations. Plaintiff Estrada is a 22 Hispanic former hourly Food City employee, and plaintiff 23 Martinez is a Hispanic current Food City hourly employee.29 24 29 25 26 27 28 Ms. Martinez’s declaration is from 2004. Not having been advised to the contrary, the court presumes she is still a Food City employee. At the same time, however, the court is well aware that “[c]lass certification is not immutable, and class representative status could be withdrawn or modified if at any time the representatives could no longer protect the interests of the class.” Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003) (citation omitted); see also Lopez v. San Francisco Unified School District, 2003 WL 26114018, at *2 (N.D.Cal. Sept. 8, 2003) (citation omitted) (“[T]he Court has a duty throughout the litigation to stringently examine the adequacy of class representatives.”) - 52 - 1 Both allege that they were paid less than their Caucasian 2 counterparts at A.J.’s and Bashas’ for performing the same 3 work. 4 190), exh. 40 (Estrada EEOC charge) thereto. The putative 5 class, comprised of “all past, present and future Latino 6 employees of” defendant alleges that same, identical injury. 7 See FAC (Doc. 116) at 3:19-20, ¶ 10. 8 with respect to commonality, this lawsuit is “based on 9 conduct which is not unique to the named plaintiffs” See FAC (Doc. 116) at ¶ 8; and Def.’s Resp. MCC (Doc. Further, as discussed – 10 Bashas’ wage scales. See Ellis I, 657 F.3d at 984 (internal 11 quotation marks and citation omitted). 12 members have been injured by” those wage scales 13 Bashas’ conceded, under its wage scales “Hispanic employee 14 hourly rates were lower in similar jobs[,]”30 at least “during 15 the period 1998-2000[.]” 16 Thus, as just shown, Bashas’ contention that the alleged 17 discrimination has not “‘manifested itself . . . in the same 18 general fashion[]’” borders on the frivolous insofar as the 19 equal pay claim is concerned. 20 190) at 45:9; and 21 n. 15, 102 S.Ct. 2364) (emphasis added by Bashas’). Lastly, “other class because, as See Parra II, 536 F.3d at 979. See Def.’s Resp. MCC (Doc. 45:26-27 (quoting Falcon, 457 U.S. at 159 An additional basis for finding typicality in this action 22 23 is that the named plaintiffs’ pay claims “rest on legal 24 theories that apply to all putative class members.” See Wood 25 26 27 28 30 As previously discussed, this is one of three concessions which the Ninth Circuit found highly pertinent with respect to commonality. However, because Rule 23(a)’s commonality and typicality requirements “‘tend to merge[,]’” Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364)), this concession also heavily bears on the typicality inquiry. - 53 - 1 V. Betlach, 286 F.R.D. 444, 448 (D.Ariz. 2012) (citing Cohen 2 v. Chicago Title Ins. Co., 242 F.R.D. 295, 299 (E.D.Pa. 2007) 3 (“[E]ven relatively pronounced factual differences will 4 generally not preclude a finding of typicality where there is 5 a strong similarity of legal theories.’”) (citation omitted); 6 Mitchell–Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 7 551, 558 (D.Md. 2006) (“‘[W]hile claims of particular 8 individuals may vary in detail from one to another, the 9 collective claims focus on particular policies applicable to 10 each class member thereby satisfying the typicality 11 requirement of Rule 23(a).’”) (other citation and footnote 12 omitted). 13 the same legal theories, and because those claims are 14 reasonably co-extensive with the absent class members, they 15 have cleared the typicality hurdle. 16 Inc., 2012 WL 2872788, at *8 (E.D.Cal. July 12, 2012) 17 (typicality shown where “Plaintiffs’ claims are ‘co- 18 extensive’ with the other Class Members, as Plaintiffs and 19 the absent Class Members were all Defendants' employees who 20 were paid under the same pay practices and worked under the 21 same company-wide employment policies[]”); see also Marin v. 22 Evans, 2008 WL 2937424, at *4 (E.D. Wash. July 23, 2008) 23 (finding typicality where the “named Plaintiffs were 24 employees of [defendant company], and their claim is that 25 they were allegedly injured by the Illegal Hiring Scheme by 26 reduction in pay, which is typical of the claims that would 27 be asserted by all members of the purported class[]”). 28 . . . Because the named plaintiffs’ pay claims rest on - 54 - See Gong-Chun v. Aetna 4. 1 Adequacy 2 The last Rule 23(a) hurdle plaintiffs must clear is 3 subsection four, which provides that “the representative 4 parties will fairly and adequately protect the interests of 5 the class.”31 6 “satisf[ies] due process concerns[]” in that “absent class 7 members must be afforded adequate representation before entry 8 of a judgment which binds them.” 9 (citing Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, Fed.R.Civ.P. 23(a)(4). This requirement Hanlon, 150 F.3d at 1020 10 85 L.Ed. 22 (1940)). 11 requirement “also raises concerns about the competency of 12 class counsel and conflicts of interest.” 13 S.Ct. at 2551 n. 5 (citation and internal quotation marks 14 omitted). 15 among other factors, an absence of antagonism between 16 representatives and absentees, and a sharing of interest 17 between representatives and absentees.” 18 985 19 whether named plaintiffs will adequately represent a class, 20 courts must resolve two questions: ‘(1) do the named 21 plaintiffs and their counsel have any conflicts of interest 22 with other class members and (2) will the named plaintiffs 23 and their counsel prosecute the action vigorously on behalf Therefore, The adequacy-of-representation See Dukes, 131 “[a]dequate representation depends on, (citation omitted). Ellis I, 657 F.3d at Consequently, “[t]o determine 24 25 26 27 31 “Since the revision of Rule 23 in December 2003, the adequacy of class counsel is now evaluated pursuant to Rule 23(g). ‘Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while this subdivision will guide the court in assessing proposed class counsel as part of the class certification process.’” Parra I, 2005 WL 6182338, at *18 n. 33 (quoting Fed.R.Civ.P. 23 Advisory Committee note). 28 - 55 - 1 of the class?’” Id. (quoting Hanlon, 150 F.3d at 1020). 2 Here, as explained below, the court answers the first 3 question in the negative, and the second, in the affirmative. 4 As a result, it finds that named plaintiffs Estrada and 5 Martinez are adequate class representatives with respect to 6 the pay claim. Plaintiffs Estrada and Martinez maintain that they are 7 8 adequate class representatives because they are “able and 9 willing to represent the class[,]” and they have the “same” 10 interests as those of the potential class members in that 11 they are seeking to prove, inter alia, that Bashas’ “pay 12 policies . . . discriminate against Hispanic[] workers.” 13 Pls.’ MCC (Doc. 159) at 22:10-13 (citations and footnote 14 omitted). 15 plaintiffs do not have the same interests as the putative 16 class because they are “puppets” of the United Food and 17 Commercial Workers Union (“the Union”), having “private 18 ulterior motives[.]” 19 47:7 (emphasis omitted). Essentially, Bashas’ counters that the named Def.’s Resp. MCC (Doc. 190) at 48:1-2l; 20 This ulterior motives argument can be resolved with 21 dispatch because this court already addressed it in Parra I, 22 albeit in the context of the working conditions claim. 23 differing nature of the claim does not change the result 24 though. 25 and the court’s view is the same. 26 the named plaintiffs are inadequate due to [Bashas’] 27 allegations of ulterior motives.” 28 *18. The The record is the same; the arguments are the same; It is “not convinced that Parra I, 2005 6182338, at It is necessary, though, to address Bashas’ remaining - 56 - 1 challenges, not specifically addressed in Parra I, as to the 2 adequacy of named plaintiffs Estrada and Martinez to serve as 3 class representatives. a. 4 i. 5 6 Gonzalo Estrada “Individual Claim” Bashas’ claims that plaintiff Estrada is not an adequate 7 class representative because he has “no individual claim fit 8 to pursue[.] Def.’s Resp. MCC (Doc. 190) at 56:6. 9 court’s finding in Parra I that plaintiff Estrada This 10 “articulated [a] claim for pay disparity” undercuts that 11 assertion. 12 See Parra I, 2005 WL 6182338, at *17. There is likewise no merit to Bashas’ claim that Mr. 13 Estrada is not an adequate class representative because “he 14 is involved in this suit, not for what happened to him, but 15 for what happened to others.” 16 54:10-11. 17 snippet from Mr. Estrada’s deposition: Def.’s Resp. MCC (Doc. 190) at The basis for this assertion is the following 19 Q. And in this lawsuit you’re not involved in it because of what happened to you? 20 A. No. 21 Q. You’re standing up for other employees? 22 A. Yes. 18 23 Id. at 54:12-16 (citing exh. 11 thereto 54:4-8) (footnote 24 omitted). 25 willingness to “stand[] up for other employees” is further 26 indicia that plaintiff Estrada is a proper class 27 representative. 28 Estrada, like Ms. Martinez, has declared his “ability and If anything, it strikes the court that a See id. This is especially so given that Mr. - 57 - 1 willingness to represent the class.” See Parra I, 2005 WL 2 6182338, at *18 (citations omitted). Taking the record as a 3 whole, the court finds unconvincing Bashas’ argument that 4 plaintiff Estrada is not an adequate class representative 5 because he is not asserting an individual claim. ii. 6 7 Former Employee Bashas’ also endeavors to show that Mr. Estrada and the 8 potential class members do not have a shared interest because 9 he is a former Food City employee whose circumstances are 10 “vastly different” than those of the putative class. 11 Resp. MCC (Doc. 190) at 54:27, n. 38. 12 Mr. Estrada’s lack of “interest in returning to Food City,”32 13 which Bashas’ argues renders “moot . . . the issue of 14 injunctive relief[.]” 15 relief sought, plaintiffs respond that “[f]ormer employees may 16 represent current employees in a class action[.]” Pls.’ Reply 17 (Doc. 207) at 24:1 (citations omitted). 18 19 Id. Def.’s One such difference is Disregarding the nature of the These arguments are imported directly from the 2004 class certification motion.33 Both the law, and the plaintiffs’ 20 32 21 22 23 24 25 26 27 28 To support this assertion, Bashas’ is relying upon an excerpt from Mr. Estrada’s deposition. See Def.’s Resp. MCC (Doc. 190) at 54:26 (citing “Estrada Depo p. 44 ll. 10-12"). There is no reason to doubt the veracity of that statement. At the same time though, there is no way to ascertain its accuracy because the excerpts provided in connection with the supplemental briefs did not include that page. That is also the case for the remaining excerpts from Mr. Estrada’s deposition which Bashas’ cites in footnote 38 of its response to the motion for class certification. Such inadvertent omissions are always bothersome, but they were all the more so here where the combined briefs and record are in the range of 3,000 pages. 33 Devoting its post-Dukes briefs exclusively to commonality and typicality, Bashas’ omitted any discussion of adequacy. In their postDukes supplemental brief, plaintiffs direct the court to their “original briefing” as to adequacy, among other things. See Pls.’ Supp. Br. (Doc. 302) at 19:25-26. Therefore, because on remand this court must consider whether each of the threshold Rule 23(a) requirements is met as to the - 58 - 1 position along with it, have changed since that time however. 2 In 2004, plaintiffs were relying upon Rule 23(b)(2)34 as the 3 basis for class certification of both the equal pay and 4 working conditions claims. 5 certified a class under that Rule only as to working 6 conditions. 7 Court unanimously held 8 belong in Rule 23(b)(3)”35 – not in Rule 23(b)(2). 9 Dukes, 131 S.Ct. at 2558. Consequently, in light of Dukes, In fact, in Parra I, this court In the intervening years, in Dukes the Supreme that “individualized monetary claims See 10 now plaintiffs are seeking class certification of the equal 11 pay claim strictly on the basis of Rule 23(b)(3). 12 That shift takes the issue of injunctive relief 13 14 15 equal pay claim, necessarily it has resorted to the parties’ original, preDukes’ arguments. 34 16 A class action may be maintained if Rule 23(a) is satisfied and if: . . . 17 18 the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.] 19 20 21 22 Fed.R.Civ.P. 23(b)(2). 35 23 24 25 26 27 28 That Rule provides: In relevant part, that Rule reads as follows: A class action may be maintained if Rule 23(a) is satisfied and if: the court finds 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). - 59 - 1 completely out of the equation insofar as the pay claim is 2 concerned. 3 prevail on their pay claim, Mr. Estrada, as well as other 4 putative class members (current and former hourly Food City 5 employees), would be entitled to recover monetary damages, 6 despite the fact they are no longer employed there. 7 Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 87 8 (S.D.N.Y. 2001) (in analyzing adequacy, finding that 9 “[b]ecause this is a suit primarily for money damages stemming Not only that, if ultimately plaintiffs were to See 10 from past actions, it is not relevant that only one of the 11 named Plaintiffs is still employed as a delivery person[]”). 12 The Supreme Court in Dukes recognized as much, stressing that 13 “if a backpay action were properly certified for class 14 treatment under (b)(3), the ability to litigate a plaintiff’s 15 backpay claim as part of the class would not turn on the 16 irrelevant question whether []he is still employed at 17 defendant store].” 18 original). 19 does not weaken a finding that he is an adequate class 20 representative insofar as the plaintiffs are seeking monetary 21 damages for their equal pay claim.36 22 [the Dukes, 131 S.Ct. at 2560 (emphasis in Thus, plaintiff Estrada’s former employee status The same is true with respect to Bashas’ litany of the 23 24 25 26 27 28 36 By curtailing the relief which they are seeking as to their pay claim, plaintiffs have negated altogether Bashas’ argument that as a former employee Mr. Estrada is an inadequate class representative because he lacks a shared interest with the class as to injunctive relief. If plaintiffs were still seeking such relief, the result would be different, see Ellis I, 657 F.3d at 986 (vacating district court’s finding that the former employees could adequately represent that class because they had “no incentive to pursue injunctive relief[,]” and hence they did not “share an interest with class members whose primary goal [wa]s to obtain injunctive relief[]” under Rule 23(b)(2)), but the fact remains that they are not. Plaintiffs’ equal pay claim seeks only monetary damages. - 60 - 1 other “vastly different circumstances” which allegedly are 2 indicative of a conflict of interest, such that Mr. Estrada 3 would not adequately represent the class. 4 MCC (Doc. 190) at 54, n. 38. 5 the court fails to see how, Estrada’s termination, his 6 supposed lack of interest in working at A.J.’s or Bashas’, or, 7 in the grocery industry generally, and his doubling in pay,37 8 render him an inadequate class representative. 9 plaintiff Estrada is seeking the same relief as the putative See Def.’s Resp. Bashas’ does not explain, and Moreover, 10 class – monetary damages. 11 as the putative class 12 employee, allegedly he received less pay than his Caucasian 13 counterparts at A.J.’s and Bashas’. 14 there a “sharing of interest” between plaintiff Estrada and 15 the potential class members, but there is an “absence of 16 antagonism between” them. 17 (citation omitted). 18 adequate class representative pursuant to Rule 23(a)(4), 19 insofar as the pay claim is concerned. 20 . . . b. 21 22 23 24 25 26 27 28 His claimed injury also is the same – as a Hispanic Food City hourly Consequently, not only is See Ellis I, 657 F.3d at 985 Accordingly, plaintiff Estrada is an Aurelia Martinez 37 Observing that plaintiff Estrada’s pay “nearly doubled,” Bashas’ strongly implies that that factor militates against a finding that he is an adequate representative. See Def.’s Resp. MCC (Doc. 190) at 54:24, n. 38 (citing “Estrada Depo p. 7 l.21 - p. 8 ll.14"). This is one of the deposition excerpts, mentioned earlier, which was not provided to the court. In this instance, however, based upon Mr. Estrada’s declaration, the court was able to easily corroborate that his pay did nearly double during his tenure at Food City. See Estrada Decl’n (Doc. 176) at 3:7-14, ¶ 8. At the end of the day that is immaterial though if, as plaintiffs allege, Mr. Estrada’s Caucasian counterparts at Bashas’ and A.J.’s were paid more for doing the same or similar work. Therefore, this asserted doubling of pay does not mean that Estrada would be an inadequate class representative. - 61 - 1 Bashas’ advances two other equally unpersuasive theories 2 as to why Ms. Martinez in particular is not an adequate class 3 representative. 4 weak, and the second is her credibility. i. 5 6 The first is that allegedly her claims are Strength of Claims Bashas’ disputes the legitimacy and sufficiency of Ms. 7 Martinez’s claims because in June 1999, when she and her 8 husband filed for bankruptcy, she did not list her potential 9 claims in this lawsuit as a contingent and unliquidated claim 10 on their Schedule B form. 11 accompanying that Schedule under penalty of perjury. 12 Def.’s Resp. MCC (Doc. 190) at 62:9-10. 13 October, 2002, when Ms. Martinez and her husband were 14 discharged in bankruptcy, and the April 4, 2002, commencement 15 of this action, Bashas’ points out that Ms. Martinez did not 16 amend Schedule B to include any potential claims herein. 17 These omissions, Bashas’ contends, “suggest[] either that (1) 18 [Ms. Martinez] has no legitimate claims, or (2) she knew that 19 any potential claim had no value.” 20 The court declines to make either inferential leap, especially 21 when there is no factual or legal basis for so doing. 22 Ms. Martinez signed the declaration See Further, between Id. at 61:15-16; 62:18-20. Ms. Martinez did not become a named plaintiff until more 23 than four and a half years after she and her husband filed for 24 bankruptcy. 25 it is not surprising that Ms. Martinez did not mention this 26 lawsuit during the bankruptcy. 27 month overlap of the pendency of this action and the Martinez 28 bankruptcy, Ms. Martinez’s involvement in this action was peripheral. Therefore, the court agrees with plaintiffs that Furthermore, during the six She was simply a member of a proposed, but - 62 - 1 uncertified, class. Until a decision on class certification, 2 including the scope of the class, 3 knowing whether she would actually become a class member. 4 fact, the possibility of Ms. Martinez becoming a named 5 plaintiff did not occur until December 4, 2003, more than a 6 year after the bankruptcy discharge, upon the filing of a 7 motion to amend the complaint to include Ms. Martinez as a 8 named plaintiff. 9 the FAC, adding Ms. Martinez as a named plaintiff, actually Ms. Martinez had no way of In And, it was not until March 11, 2004, that 10 was filed. This particular factual situation does not give 11 this court any reason to doubt the adequacy of Ms. Martinez as 12 a class representative. 13 Continuing to question the strength of Ms. Martinez’s 14 claims, because she did not disclose them during her 15 bankruptcy, Bashas’ argues that such “[w]eakness or 16 illegitimacy in a proposed class representative’s case is an 17 “‘independent reason to doubt the adequacy of [her] 18 representation.’” 19 (quoting Robinson, 167 F.3d at 1157) (other citations 20 omitted). Def.’s Resp. MCC (Doc. 190) at 63:7-8 This argument is unpersuasive. 21 In the first place, this court agrees that “[t]he 22 adequacy prong of Rule 23(a) isn't the place to try to 23 litigate the merits of a case.” 24 605-06. 25 of Rule 23 . . . gives a court any authority to conduct a 26 preliminary inquiry into the merits of a suit in order to 27 determine whether it may be maintained as a class action.’” Norris-Wilson, 270 F.R.D. at “In fact, ‘nothing in either the language or history 28 - 63 - 1 Id. (quoting United Steel Workers, 593 F.3d at 808 2 (alterations in original) (other citations omitted). 3 Second, Bashas’ main authority, Robinson, is non-binding 4 Seventh Circuit precedent and distinguishable in one very 5 critical respect. 6 brought a Title VII putative class action. 7 applicant’s adequacy as a class representative, the defendant 8 employer came forth with evidence showing that that applicant 9 “had been turned down because of his very poor employment There, a correction officer applicant Challenging that 10 record, which among other things contained an unexplained 27- 11 month gap between jobs.” 12 that employment history, the district court denied class 13 representative status to that applicant. 14 that class certification was properly denied, the Robinson 15 Court reasoned: 16 17 18 19 20 Robinson, 163 F.3d at 1156. Due to Holding, inter alia, [I]f when class certification is sought it is already apparent -as it was here because of Robinson’s employment history as shown on the application that he submitted to the Sheriff’s office -- that the class representative’s claim is extremely weak, this is an independent reason to doubt the adequacy of his representation. 21 Id. at 1157 (citations omitted). The Court further reasoned, 22 that if a named plaintiff’s “claim is a clear loser at the 23 time he asks to be made class representative, then approving 24 him as a class representative can only hurt the class.” 25 at 1158 (emphasis in original). Id. 26 In sharp contrast to Robinson, the asserted weakness in 27 Ms. Martinez’s claims –- her failure to disclose them during 28 bankruptcy -- has nothing whatsoever to do with the merits. - 64 - 1 According to Bashas’, Ms. Martinez’s claims herein are weak 2 because she did not disclose them during bankruptcy. 3 does not assert, and it would be hard-pressed to, that Ms. 4 Martinez’s pay claim is “extremely weak,” much less a “clear 5 loser” on the merits. 6 disclose her potential claims is not “an independent reason to 7 doubt the adequacy of her representation.” 8 F.3d at 1156 (citations omitted). ii. 9 10 Bashas’ Thus, Ms. Martinez’s failure to See Robinson, 167 Credibility Emphasizing that Ms. Martinez signed the declaration 11 accompanying the Schedule B Form under penalty of perjury, 12 Bashas’ strongly implies that Ms. Martinez has credibility 13 issues which impact her adequacy as a class representative. 14 “[C]redibility is a relevant consideration with respect to the 15 adequacy analysis[.]” 16 (internal quotation marks and citations omitted). 17 time, however, “credibility problems must relate to issues 18 directly relevant to the litigation or there are confirmed 19 examples of dishonesty, such as a criminal conviction for 20 fraud.” 21 Thus, even if the court were to find, which it does not, that 22 Ms. Martinez’s credibility is at issue because she did not 23 disclose this lawsuit during bankruptcy, such credibility 24 issue would not impact her ability to serve as a class 25 representative. 26 Keegan, 2012 WL 2250040, at *14 At the same Id. (internal quotation marks and citations omitted). To this point, the focus has been upon the first prong of 27 adequacy – the absence of antagonism and sharing of interests 28 between the named plaintiffs and the absentee class members. - 65 - 1 As the foregoing discussion shows, there has been no showing 2 that either plaintiffs Estrada or Martinez have any conflicts 3 with putative class members. 4 the adequacy test, however. 5 plaintiffs and their counsel prosecute the action vigorously 6 on behalf of the class[,]” Ellis I, 657 F.3d at 985 (internal 7 quotation marks and citation omitted), in Parra I this court 8 found that they would by implication. 9 6182338, at *20 - *22. That is only the first prong of As to the second, “will the named See Parra I, 2005 WL To be sure, at that time, the court 10 was discussing appointment of class counsel pursuant to 11 Fed.R.Civ.P. 23(g), and not adequacy under Rule 23(a)(4). 12 There is no reason to revisit the issue of whether class 13 counsel will vigorously prosecute this action, however, 14 because Bashas’ has not raised any other issues in that regard 15 beyond those raised and resolved in Parra I. 16 Additionally, “[i]n assessing whether class 17 representatives and their counsel will vigorously prosecute a 18 class action litigation, courts may consider the actual 19 progress of the proceedings to that point.” 20 Healthcare Services, Inc., 2012 WL 3705263, at *6 (C.D.Cal. 21 Aug. 27, 2012) (internal quotation marks and citation 22 omitted). 23 class certification stage, it is not due to the failure of 24 plaintiffs’ counsel to vigorously prosecute this action. 25 fact, their continued involvement at every step of this rather 26 complicated and protracted litigation, 27 clear that despite the passage of time, they remain willing 28 and able to vigorously prosecute this action. Buckland v. Maxim Although this action has not progressed beyond the - 66 - In makes it abundantly 1 In short, as with the other Rule 23(a) requirements, the court 2 finds that the adequacy requirement has been satisfied. 3 Having shown that all four elements of 4 to the pay claim, the next issue is whether this action 5 “fit[s] into one of the three categories described in 6 subdivision (b)[]” of Rule 23. 7 Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 8 1431, 1437, 176 L.Ed.2d 311 (2010) (internal quotation marks 9 omitted)). 10 11 B. Fed.R.Civ.P. Rule 23(a) are met as Shady Grove Orthopedic 23(b)(3) As previously discussed, after Dukes, plaintiffs are 12 seeking class certification of their pay claim solely pursuant 13 to Rule 23(b)(3). 14 is designed for situations in which class-action treatment is 15 not as clearly called for.” Comcast, 133 S.Ct. at 1432 16 (internal quotation marks and citations omitted). 17 explains Congress’s addition of procedural safeguards for 18 (b)(3) class members beyond those provided for (b)(1) or 19 (b)(2) class members (e.g., an opportunity to opt out), and 20 the court’s duty to take a “‘close look’” at whether common 21 questions predominate over individual ones.” 22 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 23 2231, 138 L.Ed.2d 689 (1997)). 24 That Rule, “as an adventuresome innovation, “That Id. (quoting Certification pursuant to Rule 23(b)(3) “is appropriate 25 ‘whenever the actual interests of the parties can be served 26 best by settling their differences in a single action.’” 27 Hanlon, 150 F.3d at 1022 (quoting 28 Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure - 67 - 7A Charles Alan Wright, 1 § 1777 (2d ed.1986) (“Wright & Miller”). The “only 2 prerequisites” for certification under Rule 23(b)(3) “are that 3 ‘the questions of law or fact common to class members 4 predominate over any questions affecting only individual class 5 members, and that a class action is superior to other 6 available methods for fairly and efficiently adjudicating the 7 controversy.’” Dukes, 131 S.Ct. at 2558 (quoting 8 Fed.R.Civ.P.23(b)(3)). 9 superiority “are interrelated because ‘[i]mplicit in the The questions of predominance and 10 satisfaction of the predominance test is the notion that the 11 adjudication of common issues will help achieve judicial 12 economy.’” York v. Starbucks Corp., 2011 WL 8199987, at *31 13 (C.D.Cal. Nov. 23, 2011) (quoting, inter alia, Valentino v. 14 Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). 1. 15 16 Predominance “[T]here is substantial overlap between” the test for 17 commonality under Rule 23(a)(2) and the predominance test 18 under 23(b)(3). 19 LLC, 617 F.3d 1168, 1172 20 anything, Rule 23(b)(3)’s predominance criterion is even more 21 demanding than Rule 23(a).” 22 (citing Amchem, 521 U.S. 591, 623-24, 117 S.Ct. 2231). 23 Consequently, “the presence of commonality alone is not 24 sufficient to fulfill Rule 23(b)(3).” 25 1022. 26 questions that qualify each class member’s case as a genuine 27 controversy.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. 28 contrast to Rule 23(a)(2), “[t]he predominance analysis under Wollin v. Jaguar Land Rover North America (9th Cir. 2010). However, “[i]f Comcast, 133 S.Ct. at 1432 Hanlon, 150 F.3d at The predominance inquiry “trains on legal or factual - 68 - In 1 Rule 23(b)(3) focuses on the relationship between the common 2 and individual issues in the case and tests whether proposed 3 classes are sufficiently cohesive to warrant adjudication by 4 representation.” 5 marks and citation omitted). 6 emphasized in Amgen, “Rule 23(b)(3) requires a showing that 7 questions common to the class predominate, not that those 8 questions will be answered, on the merits, in favor of the 9 class.” Wang, 709 F.3d at 835 (internal quotation As the Supreme Court recently Amgen, 133 S.Ct. at 1191 (emphasis in original). 10 Hence, “the office of a Rule 23(b)(3) certification ruling is 11 not to adjudicate the case; rather, it is to select the 12 metho[d] best suited to adjudication of the controversy fairly 13 and efficiently.” 14 Id. (internal quotation marks omitted). The Ninth Circuit recognizes that “‘there is clear 15 justification for handling the dispute on a representative 16 rather than an individual basis’ if ‘common questions present 17 a significant aspect of the case and they can be resolved for 18 all members of the class in a single adjudication[.]’” Mazza, 19 666 F.3d at 589 (quoting, inter alia, Hanlon, 150 F.3d at 20 1022). 21 the separate adjudication of each class member’s individual 22 claim or defense, . . . , a Rule 23(b)(3) action would be 23 inappropriate.’” Keegan, 284 F.R.D. at 256 (quoting, inter 24 alia, Zinser v. Accufix Research Institute, Inc., 253 F.3d 25 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th 26 2001)). “This is because, inter alia, the economy and 27 efficiency of class action treatment are lost and the need for 28 judicial supervision and the risk of confusion are In contrast, “‘if the main issues in a case require - 69 - Cir. 1 magnified.’” Id. (quoting Zinser, 253 F.3d at 1186). 2 must thus separate the issues subject to ‘generalized proof’ 3 from those subject to ‘individualized proof’ to determine 4 whether plaintiffs have satisfied the predominance 5 requirement.” 6 “Courts Ellis II, 285 F.R.D. at 537 (citation omitted). The predominance analysis “‘begins . . . with the 7 elements of the underlying cause of action.’” Stearns, 655 8 F.3d at 1020 (quoting Erica P. John Fund, Inc., v. Halliburton 9 Co., 563 U.S. ––––, ––––, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24 10 (2011)). Here, plaintiffs are alleging that “Bashas’ two- 11 tiered 12 had a disparate impact on Hispanic Food City workers in 13 violation of Title VII and Section 1981.” 14 (Doc. 302) at 21:3-5. 15 issue[] . . . involves no individual questions[,]” plaintiffs 16 argue. 17 Plaintiffs further argue that the “only individual 18 determination to be made” –- the amount of back pay –- “does 19 not defeat class certification.” 20 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089 21 (9th Cir. 2010)). 22 the Ninth Circuit in Parra II rejected Bashas’ argument that 23 “[t]he claimed difficulties in the calculations of damages, as 24 they affected the various class members . . . preclude[d] 25 class certification.” Parra II, 536 F.3d at 979. 26 more, just recently, the Ninth Circuit reaffirmed its long- 27 held view that “‘[t]he amount of damages is invariably an 28 individual question and does not defeat wage policy constitutes disparate treatment and/or has Pls.’ Supp. Br. Resolution of that “central liability Id. at 21:2-3; 21:5 (emphasis in original). Id. at 21:6; 22:1 (citing And, as plaintiffs are quick to point out, - 70 - What is 1 class action treatment.’” Leyva v. Medline Industries Inc., 2 2013 WL 2306567, at *3 (9th Cir. May 28, 2013) (quoting 3 Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (other 4 citation omitted). 5 Perhaps because the Supreme Court in Dukes clarified that 6 “individualized monetary claims[,]” such as plaintiffs’ back 7 pay claims herein, “belong in Rule 23(b)(3)[,]” Dukes, 131 8 S.Ct. at 2558, Bashas’ agrees that individual damage issues 9 alone do not defeat class certification under that Rule. See 10 Stearns, 655 F.3d at 1026 (citing Yokoyama, 594 F.3d at 1094) 11 (“We have held that the mere fact that there might be 12 differences in damage calculations is not sufficient to defeat 13 class certification.”) 14 plaintiffs have not established predominance because 15 “[q]uestions regarding liability would require . . . highly 16 fact-specific inquiries regarding whether or not the 17 Plaintiffs’ alleged discriminatory pay . . . w[as] the result 18 of discrimination or some other, non-discriminatory factor.” 19 Def.’s Supp. Br. (Doc. 301) at 19:26-20:1. 20 based upon two faulty assumptions – one pertaining to the 21 nature of plaintiffs’ pay claim and the other to the proof in 22 that regard. 23 Nonetheless, Bashas’ insists that This argument is Although plaintiffs have explicitly renounced their 24 Subjective Placement claim, Bashas’ still insists that 25 plaintiffs’ pay claim involves “subjective decision-making[]” 26 where “individual store managers, acting at their own 27 discretion, decided where to place employees on the wage 28 scale.” Def.’s Resp. (Doc. 304) at 7:19 (citations omitted); - 71 - 1 6:22-23 (emphasis added). From Bashas’ standpoint, the 2 exercise of that discretion “set the employees’ wage history 3 in motion, and it is a key issue in this case.” 4 25. 5 posits that defending such a claim would involve assessing 6 “numerous . . . subjective decisions regarding placement of 7 members, in the proposed class, on the pay scales.” 8 8:13-15. Such an assessment is incompatible with a finding of 9 predominance in Bashas’ view. Id. at 6:23- Characterizing plaintiffs’ pay claim in that way, Bashas’ Id. at 10 Perhaps Bashas’ argument would have some validity if 11 plaintiffs were still pursuing their Subjective Placement 12 claim, but they are not. 13 plaintiffs’ pay claim is based strictly on Bashas’ wage 14 scales, and is independent of their foregone Subjective 15 Placement claim. 16 of that Subjective Placement claim is not germane to the issue 17 of whether common issues predominate with respect to 18 plaintiffs’ pay claim, 19 scales. At the risk of repetition, Thus, the ostensibly individualized nature predicated solely upon Bashas’ wage 20 The second faulty assumption under which Bashas’ is 21 operating is that “[p]laintiffs have not produced any actual 22 evidence that Bashas’ operated under a single, common policy 23 of discrimination.” 24 As discussed with respect to commonality, plaintiffs have 25 identified a specific employment policy, i.e., Bashas’ wage 26 scales, which have caused a pay disparity. 27 F.R.D. at 538 (finding predominance where “[p]laintiffs . . . 28 presented significant proof that Costco operates under a Def.’s Supp. Br. (Doc. 301) at 20:2-3. - 72 - See Ellis II, 285 1 common, nationwide promotion system for [certain] positions 2 and have identified specific employment practices that have 3 caused a disparity in promotions[]”). 4 plaintiffs contend that Bashas’ wage scales are 5 “discriminatory, both under a disparate treatment and a 6 disparate impact theory[,] . . . [r]esolution of Plaintiffs’ 7 challenge to those [wage scales] will resolve significant 8 issues with respect to the class as a whole and this dwarfs 9 the individualized issues[.]” Further, because See id. (citing Stinson v. City 10 of New York, 282 F.R.D. 360, 382 (S.D.N.Y. 2012) (“‘Class-wide 11 issues predominate if resolution of some of the legal or 12 factual questions that qualify each class member’s case as a 13 genuine controversy can be achieved through generalized proof, 14 and if these particular issues are more substantial than the 15 issues subject only to individualized proof.’”) (quoting Moore 16 v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)). 17 More closely considering plaintiffs’ specific theories of 18 liability, disparate treatment and disparate impact, yields 19 the same result. 20 the reasoning in Ellis II. 21 disparate treatment claim, the court explained: On that point, the court finds persuasive There, with respect to the whether Defendant has engaged in a pattern or practice of discrimination such that all class members are entitled to a presumption of discrimination under the Teamsters method of proof38 is a common 22 23 24 25 38 26 27 28 “As the Supreme Court reaffirmed in Dukes, pattern-or-practice cases alleging disparate treatment under Title VII typically follow a bifurcated, burden-shifting structure laid out by Int’l Broth. of Teamsters v. United States, 431 U.S. 324 (1977): We have established a procedure for trying pattern-or-practice cases that gives effect to [Title VII's] statutory requirements. When the - 73 - issue subject to classwide resolution. This ‘pattern and practice question predominates because it has a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to . . . monetary relief.’ Ingram v. The Coca–Cola Co., 200 F.R.D. 685, 699 (N.D.Ga. 2001) (certifying (b)(3) class of plaintiffs alleging a pattern or practice of race discrimination in employment under Teamsters framework); see also Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009) (“Common issues of fact and law predominate if they ha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.”) (internal citations and quotation marks omitted). 1 2 3 4 5 6 7 8 9 10 11 Ellis II, 285 F.R.D. at 538 (footnote added). 12 court similarly explained as to plaintiffs’ disparate impact 13 claim: 14 15 16 17 18 The Ellis II whether Defendant’s facially neutral policies and practices have a disparate impact on class members, and whether those practices are nonetheless justified by business necessity, are similarly issues best addressed with respect to the entire class. . . . Adjudicating these issues on a classwide basis is necessary before any individualized proceeding can occur. 19 Id. (citations and footnote omitted). Adopting that 20 rationale, the court finds that the common questions regarding 21 liability as to the pay claim are “a significant aspect of 22 23 24 25 26 27 plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, a district court must usually conduct additional proceedings . . . to determine the scope of individual relief. . . . At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. . . . 28 Ellis II, 285 F.R.D. at 505 (quoting Dukes, 131 S.Ct. at 2552 n. 7) (internal quotations and citations omitted). - 74 - 1 th[is] case and they can be resolved for all members of the 2 class in a single adjudication[.]” See Mazza, 666 F.3d at 589 3 (internal quotation marks and citations omitted). 4 Before addressing superiority, the court also must 5 consider whether plaintiffs’ damages can be determined on a 6 classwide basis. 7 standard for evaluating certification” requires a showing 8 “that damages are capable of measurement on a classwide 9 basis[]”). See Comcast, 133 S.Ct. at 1432 In Comcast, (“the proper an antitrust action, the district 10 court accepted one of plaintiffs’ four theories of antitrust 11 impact, but rejected the other three theories. 12 limitation, the plaintiffs relied on a regression model that 13 “did not isolate damages resulting from any one theory of 14 antitrust impact.” Comcast, 133 S.Ct. at 1431). 15 Despite that Both the district court and the Third Circuit declined to 16 entertain the defense argument challenging plaintiffs’ 17 regression model because “those arguments would also be 18 pertinent to the merits determination[.]” Id. at 1433. 19 Finding “[t]hat reasoning to flatly contradict[]” prior 20 Supreme Court precedent, and Dukes in particular, the Court 21 reversed the class certification order. 22 omitted). 23 Circuit for “simply conclud[ing] that respondents provided a 24 method to measure and quantify damages on a classwide basis,” 25 without deciding whether the methodology [was] a just and 26 reasonable inference or speculative.” 27 marks and citation omitted) 28 Id. (citation In reversing, the Comcast Court chastised the Third Id. (internal quotation In the present case, unlike Comcast, plaintiffs’ - 75 - 1 methodology (although not fully developed39) for calculating 2 back pay demonstrates that such damages are “capable of 3 measurement on a classwide basis. 4 1433. 5 [Bashas’] liability, damages will be calculated based on the 6 wages each employee lost due to [Bashas’] unlawful practices.” 7 See 8 liable, it strikes the court, as the plaintiffs urge, that the 9 back pay determination “is a purely mechanical process[.]” See Comcast, 133 S.Ct. at “Here, unlike Comcast, if putative class members prove Leyva, 2013 WL 2306567, at *3. If Bashas’ is found 10 Pls.’ Supp. Br. (Doc. 302) at 21:7. Furthermore, through a 11 computer program, and relying upon “objective factors” such as 12 “the individual employee payroll record (dates of employment 13 job position, hours worked) and the wage scale,” which is part 14 of the record, the plaintiffs will be able to calculate back 15 pay losses for “each eligible class member[.]” Id. at 21:15- 16 18. 17 there was in Comcast, that “[q]uestions of individual damages 18 calculations will inevitably overwhelm questions common to the 19 class[]”. 20 in sharp contrast to Comcast, at least at this point, 21 plaintiffs’ methodology for calculating back pay correlates 22 the “legal theory of the harmful event” with “the economic 23 impact of that event. 24 marks, emphasis and citation omitted). Under this projected scenario, there is no concern, as See Comcast, 133 S.Ct. at 1433. In addition, also See id. at 1435 (internal quotation Having found 25 39 26 27 28 Plaintiffs “anticipate having an expert witness present” their backpay “analysis[,]” consisting of “a mathematical calculation conducted for each eligible class member to determine individual back pay losses.” Pls.’ Supp. Br. (Doc. 302) at 21:17-19 (emphasis in original). The court cannot fault plaintiffs for not having provided such an analysis in conjunction with their prior filings, as they did not have the benefit, nor could they have anticipated at that time, the Supreme Court’s March 27, 2013 Comcast decision. - 76 - 1 predominance, it is necessary to consider superiority, the 2 second Rule 23(b)(3) element. 2. 3 4 Superiority “‘[T]he purpose of the superiority requirement is to 5 assure that the class action is the most efficient and 6 effective means of resolving the controversy.’” 7 Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1175 (9th 8 Cir. 2010) (quoting 9 Valentino v. Carter–Wallace, Inc., 97 F.3d 1227, 1234 (9th 10 Cir. 1996) (Superiority tests whether “class litigation of 11 common issues will reduce litigation costs and promote greater 12 efficiency.”) 13 requires determination of whether the objectives of the 14 particular class action procedure will be achieved in the 15 particular case.” 16 omitted). 17 comparative evaluation of alternative mechanisms of dispute 18 resolution.” 19 “[d]istrict courts are in the best position to consider the 20 most fair and efficient procedure for conducting any given 21 litigation, . . . , and so must be given wide discretion to 22 evaluate superiority[.]” 23 quotation marks and citations omitted). 24 Wolin v. Wright & Miller, § 1779 at 174); see also “The superiority inquiry under Rule 23(b)(3) Hanlon, 150 F.3d at 1023 (citation In turn, that inquiry “necessarily involves a Id. The Ninth Circuit recognizes that Bateman, 623 F.3d at 712 (internal Plaintiffs offer two reasons as to why “[c]lass 25 treatment is clearly the superior method for adjudicating the 26 pay claims.” 27 certification would be less costly and more efficient. 28 Second, most of the putative class members “lack the Pls.’ Supp. (Doc. 302) at 22:20. - 77 - First, class 1 resources” to fund this litigation, and so would be “deterred 2 or prevented” from pursuing their discrimination claims. 3 at 22:25-26. Id. 4 Conversely, Bashas’ asserts that plaintiffs have not 5 shown superiority because, first of all, there are only a 6 “limited number of allegedly affected named plaintiffs and 7 class members[.]” Def.’s Supp. Br. (Doc. 301) at 20:11-12. 8 Supposedly, superiority also cannot be shown because putative 9 class members “retain[] a strong incentive to bring their 10 claims individually[.]” Id. at 20:13-14. 11 back to its familiar refrain that this lawsuit involves 12 “thousands of highly-individualized factual inquiries[,]” 13 Bashas’ contends that is another reason why Rule 23(b)(3) 14 certification is “inappropriate.” 15 Finally, harkening Id. at 20:18-19. Class action in accordance with Rule 23(b)(3) is the 16 superior method of adjudicating plaintiffs’ claims, despite 17 what Bashas’ argues. 18 plaintiffs accurately point out, each individual employee will 19 have to 20 two-tiered wage policy, that the policy . . . 21 disproportionately impacted Hispanic Food City employees, 22 and/or that the policy constituted disparate treatment based 23 upon national origin.” Pls.’ Supp. (Doc. 302) at 22:21-25. 24 Plainly, “[i]t is far more efficient to litigate” these 25 fundamental liability issues “on a classwide basis rather than 26 in thousands of individual and overlapping lawsuits.” 27 Wolin, 617 F.3d at 1176 (Rule 23(b)(3) class certification 28 proper in an “automobile-wear” case alleging “single, Without class certification, as separately “prove . . . that [Bashas’] maintained a - 78 - See 1 defective alignment geometry[]” where “issues common to all 2 class members . . . can be litigated together[]”); see also 3 Jordan v. Paul Financial, LLC, 285 F.R.D. 435, 467 (N.D.Cal. 4 2012) (internal quotation marks and citation omitted) (“[A] 5 single action would be superior to maintaining a multiplicity 6 of individual actions involving similar legal and factual 7 issues.”) 8 individual[s] . . . to litigate their cases, particularly 9 where common issues predominate for the proposed class, is an 10 11 As the Ninth Circuit reasoned in Wolin, “[f]orcing inferior method of adjudication.” Wolin, 617 F.3d at 1176. Further, in the present case, much like Wolin, “[p]roposed 12 class members face the option of participating in this class 13 action, or filing hundreds of individual lawsuits that could 14 involve duplicating discovery and costs that [potentially] 15 exceed the extent of proposed class members’ individual 16 injuries.” 17 precise reason for Rule 23(b)(3) class certification. 18 Amchem, 521 U.S. at 19 Committee’s Notes on Rule 23(b)(3)) (that Rule is intended “to 20 cover cases ‘in which a class action would achieve economies 21 of time, effort, and expense, and promote . . . uniformity of 22 decision as to persons similarly situated, without sacrificing 23 procedural fairness or bringing about other undesirable 24 results.’”); see also York, 2011 WL 8199987, at *33 (citations 25 omitted)(“Typically, a class action is superior if the case 26 presents a large volume of individual claims that could strain 27 judicial resources if tried separately and if each potential 28 plaintiff's recovery may not justify the cost of individual See id. Avoiding that latter scenario is the See 615, 117 S.Ct. 2231 (quoting Advisory - 79 - 1 litigation.”) Indeed, the Ninth Circuit has consistently held 2 that “[w]here recovery on an individual basis would be dwarfed 3 by the cost of litigating on an individual basis, this factor 4 weighs in favor of class certification.” 5 1175 (citing Zinser, 253 F.3d at 1189; Hanlon, 150 F.3d at 6 1023). 7 Wolin, 617 F.3d at Neither the supposedly “limited number” of potential class 8 members, or their assertedly “strong incentive” to 9 individually pursue their claims persuades the court that Rule 10 23(b)(3) is not the proper vehicle for plaintiffs to litigate 11 their claims. See Def.’s Supp. Br. (Doc. 301) at 20:11; and at 12 20:13. 13 superiority is that there are a “limited number” of putative 14 class members. 15 that point is troubling given its prior assertion that 16 plaintiffs are “seek[ing] to certify a class of at least 17 10,000[.]” Id. at 11:16. 18 hardly seems “limited,” especially considering that it is 19 based upon a “very modest assumption” of industry-wide 20 “turnover rates[.]” Id. at 11:17-18. 21 both ways; it cannot argue, in essence, that the class is too 22 large for commonality purposes, but not for superiority. 23 Bashas’ initial argument against a finding of Id. at 20:11. Bashas’ failure to elucidate on Moreover, that ten thousand figure Bashas’ cannot have it Additionally, in holding that numerosity had been shown 24 here, this court previously found, and Bashas’ did not 25 dispute, that the putative class has “thousands of members[.]” 26 See Parra I, 2005 WL 6182338, at *14 (citing Mot. (Doc. 159) 27 at 18 [(“Bashas’ has employed between 3000 and 4440 Hispanic 28 workers in hourly positions in the Food City stores in each - 80 - 1 year since 2000.)”]; Decl’n Drogin (Doc. 160) at Exhbt. 1.) 2 Hence, the number of potential class members does not render 3 Rule 23(b)(3) certification improper. 4 Likewise, the court is not convinced by Bashas’ 5 “incentive” argument. Def.’s Supp. Br. (Doc. 301) at 20:13. 6 Bashas’ postulates that plaintiffs have not shown superiority 7 because the putative class members “retain[] a strong 8 incentive to bring their claims individually,” otherwise, they 9 “risk being precluded from asserting individual claims for 10 compensatory damages of up to $300,000,40 limited by the 11 applicable statutory cap, if they choose to ‘tie their fates 12 to the class representatives.’” Id. at 20:13-17 (quoting 13 Dukes, 131 S.Ct. at 2559). 14 critical distinction between Dukes and the present case. 15 Once again, Bashas’ overlooks a The concern in Dukes was that the strategy of including 16 only backpay claims “created the possibility . . . that 17 individual class members’ compensatory-damages claims would be 18 precluded by litigation they had no power to hold themselves 19 apart from.” 20 The Court explained: Dukes, 131 S.Ct. at 2559 (emphasis in original). If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally estopped from independently seeking compensatory damages based on that same denial. That possibility underscores the need for plaintiffs with individual monetary claims to decide for themselves 21 22 23 24 25 26 27 28 40 Section 1981a(b)(3) imposes a statutory limitation on, among other types of damages, compensatory and punitive damages in Title VII suits against employers with more than 500 employees. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1200 (9th Cir. 2002); 42 U.S.C. § 1981a(b)(3)(D). - 81 - whether to tie their fates to the class representatives’ or go it alone-a choice Rule 23(b)(2) does not ensure that they have. 1 2 3 4 Id. (italicized emphasis in original) (bold emphasis added). 5 Those concerns are absent here. 6 which is mandatory, a Rule 23(b)(3) class contains an opt-out 7 provision. 8 is the sole basis for certifying plaintiffs’ pay claim. 9 Therefore, as a result of Unlike a Rule 23(b)(2) class, See Fed.R.Civ.P. 23(c)(2)(B)(v). That latter Rule Rule 23(b)(3)’s opt-out mechanism, 10 there is no risk, as there was in Dukes, where certification 11 was sought pursuant to Rule 23(b)(2), of depriving a putative 12 class member in this case of the opportunity of proceeding 13 with his or her own individual monetary claims. Lastly, Bashas’ argument that a class action is not a 14 15 superior method of adjudicating the pay claims because it 16 “would require thousands of highly-individualized factual 17 inquiries,” rings hollow given the nature of those claims and 18 the relief sought, as previously discussed. 19 Br. (Doc. 301) at 20:18-19. 20 just discussed, the court finds that certification of a class 21 pursuant to Fed.R.Civ.P. 23(b)(3) with respect to plaintiffs’ 22 pay claim satisfies the most fundamental test for superiority 23 -– “maintenance of this litigation as a class action is 24 efficient and . . . it is fair.” 25 76. See Def.’s Supp. Consequently, for the reasons See Wolin, 617 F.3d at 1175- 26 C. 27 An examination of predominance and superiority involves 28 Fed.R.Civ.P. 23(b)(3)(A)-(D) additional considerations. “In evaluating predominance and - 82 - 1 superiority, the Court must consider: (1) the extent and 2 nature of any pending litigation commenced by or against the 3 class involving the same issues; (2) the interest of 4 individuals within the class in controlling their own 5 litigation; (3) the convenience and desirability of 6 concentrating the litigation in a particular forum; and (4) 7 the manageability of the class action.”41 8 USA, Inc., 283 F.R.D. 558, 567 (S.D.Cal. 2012)(citing 9 Fed.R.Civ.P. 23(b)(3)(A)–(D); Amchem, 521 U.S. at 615-16, 117 Beck-Ellman v. Kaz 10 S.Ct. 2231)) (emphasis added). These factors “‘require[] the 11 court to focus on the efficiency and economy elements of the 12 class action so that cases allowed under subdivision (b)(3) 13 are those that can be adjudicated most profitably on a 14 representative basis.’” Zinser, 253 F.3d at 1190 (quoting 7A 15 Wright & Miller, § 1780 at 562). The application of four 16 enumerated factors, which the parties largely ignored, 17 18 19 20 21 22 23 24 25 41 The Ninth Circuit in Bateman, was confronted with the issue of whether Rule 23(b) “authorizes a court to consider whether certifying a class would result in disproportionate damages.” Bateman, 623 F.3d at 713. Because Rule 23(b)(3) “provide[d] little, if any guidance, on” that issue, the Court recognized the propriety of expanding the inquiry thereunder to include factors not listed in Rule 23(b)(3)(A)-(D): Superiority must be looked at from the point of view (1) of the judicial system, (2) of the potential class members, (3) of the present plaintiff, (4) of the attorneys for the litigants, (5) of the public at large and (6) of the defendant. The listing is not necessarily in order of importance of the respective interests. Superiority must also be looked at from the point of view of the issues. 26 Id. (quotation marks and citations omitted). Here, there is no need for the court to delve into those non-listed factors because, first of all, a See id. (emphasis added) (“A court may consider, other, non-listed factors[]” in 28 deciding whether to certify a class under Rule 23(b)(3).) Second, in contrast to Bateman, the listed Rule 23(b)(3) factors encompass the concerns relevant here to class certification thereunder. 27 consideration of those factors is discretionary, not mandatory. - 83 - 1 buttresses the finding that Rule 23(b)(3)’s predominance and 2 superiority requirements are met here. The first factor considers the interest of each member in 3 4 “individually controlling the prosecution or defense of 5 separate actions[.]” 6 “common questions affecting the class as a whole at the 7 liability stages of this matter, and given [the putative] 8 class members’ ability to opt out [,]” the putative class 9 members in the present case “have a diminished interest in Fed.R.Civ.P. 23(b)(3)(A). Given the 10 individually controlling the common portions of this action.” 11 See Ellis II, 285 F.R.D. at 539-540. Further, “[w]here damages suffered by each putative class 12 13 member are not large, this factor weighs in favor of 14 certifying a class action.” 15 (citation omitted). 16 core of the class action mechanism is to overcome the problem 17 that small recoveries do not provide the incentive” for 18 individuals to bring claims. 19 Here, the FAC does not allege the specific amount of damages 20 sought, and the plaintiffs have given no indication as to 21 whether those damages are sizeable or not. 22 Ninth Circuit estimated that the “hourly disparities 23 translate[d] to annual salary differences of around $300 per 24 year to almost $6,000 per year.” 25 977. 26 both of these reasons, the first factor weighs in favor of 27 class certification. 28 Zinser, 253 F.3d at 1190 That is because the policy “at the very Amchem Prods., 521 U.S. at 617. In Parra II, the See Parra II, 536 F.3d at Recoveries in that range are relatively modest. The second factor is “the extent and nature of any - 84 - For 1 litigation concerning the controversy already begun by or 2 against class members[.]” 3 Arguably, E.E.O.C. v. Bashas’, Inc., No. CIV 09-0209 PHX RCB, 4 wherein the EEOC is seeking to enforce an administrative 5 subpoena against Bashas’, fits the definition of such 6 litigation. 7 Bashas’ has vigorously challenged, is “part of the EEOC’s 8 “ongoing investigation into whether Bashas’ has engaged in 9 discrimination against its Hispanic employees on the basis of Fed.R.Civ.P. 23(b)(3)(B). The EEOC’s subpoena, the enforcement of which 10 national origin with respect to wages and promotions.” 11 E.E.O.C. v. Bashas’, Inc., 828 F.Supp.2d 1056, 1059 (D.Ariz. 12 2011) (internal quotation marks and citation omitted). 13 14 15 The parties are fully aware of that action as they have participated either directly or indirectly in that litigation. For now, the details are not important; suffice it to say 16 that that case is pending in the Ninth Circuit Court of 17 Appeals. 18 infancy, and the court would have to speculate as to how that 19 action might, at some future date, impact the present case, it 20 finds that the second factor also weighs in favor of class 21 certification. 22 Given that Bashas’ EEOC action is in its relative The third factor, “the desirability or undesirability of 23 concentrating the litigation of the claims in the particular 24 forum[,]” also augurs in favor of class certification. 25 Fed.R.Civ.P. 23(b)(3)(C). “Here, there is no reason to believe 26 that concentrating this action in this Court is undesirable,” 27 especially because “the proposed []class is composed of only 28 [Arizona] . . . employees.” See See York, 2011 WL 8199987, at - 85 - 1 2 *33. The fourth and final factor considers “the likely 3 difficulties in managing a class action.” Fed.R.Civ.P. 4 23(b)(3)(D). 5 of class action treatment outweigh the benefits of considering 6 common issues in one trial[.]” 7 (citations omitted). 8 not the superior method of adjudication.” 9 quotation marks and citations omitted). This factor looks to whether “the complexities Zinser, 253 F.3d at 1192 If they do, “class action treatment is Id. (internal This balancing test 10 “encompasses the whole range of practical problems that may 11 render the class format inappropriate for a particular suit.” 12 Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 164, 94 S.Ct. 13 2140, 40 L.Ed.2d 732 (1974). 14 At this juncture, and without the parties’ input, it is 15 difficult to conceive how the complexities of class 16 certification here would outweigh the benefits. Cf. In re: 17 Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 140 18 (2nd Cir. 2001) (Sotomayor, J.) (“[F]ailure to certify an 19 action under Rule 23(b)(3) on the sole ground that it would be 20 unmanageable is disfavored, and should be the exception rather 21 than the rule.”) 22 favors class certification pursuant to Rule 23(b)(3). 23 some point the pay claim does become unmanageable as a class 24 action, which the court does not anticipate, the court 25 “retains the flexibility to address problems with a certified 26 class as they arise, including the ability to decertify.” 27 United Steel Workers, 593 F.3d at 807. 28 The court thus finds that this factor, too, If at Overall, based upon the foregoing, the court finds that - 86 - 1 the named plaintiffs’ pay claim is properly certified pursuant 2 to Rule 23(b)(3). 3 however, because although it previously certified plaintiffs’ 4 working condition claim, the propriety of that certification 5 has become an issue after Dukes. 6 II. 7 The court’s analysis does not end here, Working Conditions Claim42 Rule 23(b)(2) provides in relevant part that if the 8 elements of Rule 23(a) are met, and if “the party opposing the 9 class has acted or refused to act on grounds that apply 10 generally to the class, so that final injunctive relief or 11 corresponding declaratory relief is appropriate respecting the 12 class as a whole[,] [a] class may be maintained[.]” 13 Civ. P. 23(b)(2). 14 court certified a class as to working conditions comprised of: Fed. R. Pursuant to that Rule, in Parra I, this All Hispanic workers employed by defendant in an hourly position at any Food City retail store since April 4, 1998, who have been or may be subject to the challenged disparate working conditions. 15 16 17 18 Parra I, 2005 WL 6182338, at *22. Bashas’ appealed only the 19 denial of class certification as to the pay claim, leaving 20 undisturbed the certification of the working conditions claim. 21 A. Decertification 22 Now, based upon Dukes’ “newly clarified commonality 23 24 25 26 27 28 42 Plaintiffs imply that Bashas’ disregarded this court’s order by addressing the working conditions claim in its supplemental briefs. While setting the post-Dukes briefing schedule, however, Bashas’ explicitly inquired as to the propriety of “rais[ing] the issue of reconsideration of [this court’s prior] certification of [the] store conditions” claim, or whether the court wanted that issue addressed separately. Tr. (June 27, 2011) at 10:42:09 a.m. - 10:42:16 a.m. The court responded that it would not “preclude” Bashas’ from raising that claim in the supplemental briefs. Tr. (June 27, 2011) at 10:42:26 - 10:42: 26 a.m. Consequently, the issue of the continued certification of the working conditions claim is properly before the court. - 87 - 1 standard,” Def.’s Resp. (Doc. 304) at 6:1-2, Bashas’ “requests 2 that the Court 3 of the working conditions claim. 4 at 20:22-23. 5 certif[ication]” of the working conditions claim, however, as 6 will soon become evident. 7 (emphasis added). reconsider . . . and deny” class certification Def.’s Supp. Br. (Doc. 301) Bashas’ response more accurately requests “de- Def.’s Resp. (Doc. 304) at 8:20 8 Interpreting Bashas’ request as strictly one for 9 reconsideration, plaintiffs argue that it is “untimely[.]” 10 Pls.’ Reply (Doc. 303) at 10:10. 11 argument. 12 that Bashas’ did not appeal class certification of the working 13 conditions claim pursuant to Fed.R.Civ.P. 23(f). 14 allows a party, within 14 days after entry of the class 15 certification order, to file with the court of appeals a 16 petition for permission to appeal the granting or denying of 17 class certification. 18 separate and distinct from filing a reconsideration or 19 decertification motion, however. 20 did not avail itself of Rule 23(f), it does not follow, as 21 plaintiffs’ so strongly imply, that Bashas’ current request is 22 untimely. 23 Neither is meritorious. There are two prongs to this First, plaintiffs note That Rule The filing of a Rule 26(f) petition is Therefore, although Bashas’ Second, plaintiffs baldly assert that Bashas’ “did not 24 . . . timely” move “for reconsideration[.]” Id. at 10:7. Even 25 if the court were to agree,43 it would not preclude Bashas’ 26 43 27 28 LRCiv 7.2(g)(2) provides that “[a]bsent good cause shown, any motion for reconsideration shall be filed no later than fourteen (14) days after the date of the filing of the Order that is the subject of the motion.” LRCiv 7.2(g)(2). Bashas’ did not seek reconsideration within 14 days after the filing of Parra I, and evidently that is the basis for plaintiffs’ untimeliness argument. Of course, such an argument presumes - 88 - 1 from requesting decertification now. Bashas’ request is 2 timely given the considerable latitude a district court has to 3 revisit the class certification issue. 4 decertify a class at any time.” 5 Corp., 563 F.3d 948, 966 (9th 6 (citing Falcon, 457 U.S. at 160, 102 S.Ct. 2364) 7 of Civil Procedure 23(c)(1)(C) embodies that latitude: 8 order that grants or denies class certification may be altered 9 or amended before final judgment.” “A district court may Rodriguez v. West Publ’g Cir. 2009)(emphasis added) Fed.R.Civ.P. Federal Rule “An 23(c)(1)(C). 10 Such an order is, therefore, “inherently tentative.” Coopers & 11 Lybrand v. Livesay, 437 U.S. 463, 469 n. 11, 98 S.Ct. 2454, 57 12 L.Ed.2d 351 (1978). 13 flexibility to address problems with a certified class as they 14 arise, including the ability to decertify.” 15 Workers, 593 F.3d at 809 (emphasis added). 16 Thus, “[a] district court retains the United Steel This flexibility extends “‘[e]ven after a certification 17 order is entered[.]’” Id. (quoting Falcon, 457 U.S. at 160, 18 102 S.Ct. 2364) (other citations omitted). 19 provides district courts with broad authority at various 20 stages in the litigation to revisit class certification 21 determinations and to redefine or decertify classes as 22 appropriate.” 23 Davis, 275 F.3d 849, 871 n. 28 (9th Cir. 2001), abrogated on 24 other grounds by Johnson v. California, 543 U.S. 499, 504–05, Wang, 709 F.3d at 836 (citing Thus, “Rule 23 Armstrong v. 25 26 27 28 the absence of “good cause.” In all likelihood, such a presumption is not warranted here, however, because Dukes was decided more than five years And, LRCiv 7.2(g)(1) allows for the possibility of after Parra I. reconsideration, inter alia, based upon a showing of “new . . . legal authority that could not have been brought to [the court’s] attention earlier.” So even if the court were to treat Bashas’ motion as one for reconsideration, a strong argument could be made that it is untimely. - 89 - 1 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005)) (emphasis added). 2 Indeed, somewhat presciently, relying upon Armstrong, Parra I 3 recognized that flexibility. 4 *14. 5 Bashas’ request for decertification of the working conditions 6 class, post-Dukes, as the foregoing shows. 7 See Parra I, 2005 WL 6182338, at The passage of time, therefore, is not a barrier to The parties fundamentally disagree as to whether Dukes 8 affects certification of that class. Plaintiffs argue that 9 Dukes “has no impact[,] Pls.’ Supp. Brief (Doc. 302) at 24:28, 10 whereas Bashas’ contends that plaintiffs should not be allowed 11 to “maintain” their working conditions claim because 12 commonality, as 13 Def.’s Supp. Br. (Doc. 301) at 15:22. articulated in Dukes, is missing here. 14 B. Standing 15 The court is not at liberty to address that conflict 16 without resolving the prefatory issue of standing, although 17 the parties did not. 18 939, 954 (9th Cir. 2011) (internal quotation marks and 19 citations omitted) (“[F]ederal courts are required sua sponte 20 to examine jurisdictional issues such as standing.”) 21 that ‘Rule 23’s requirements must be interpreted in keeping 22 with Article III constraints[]’” the court must determine 23 whether named plaintiffs, Estrada and Martinez 24 to bring the working conditions claim. 25 Research, Inc., 2012 WL 5877579, at *6 (N.D.Cal. Nov. 20, 26 2012) (quoting Amchem, 521 U.S. at 613, 117 S.Ct. 2231); and 27 In re Abbott Labs. Norvir Antitrust Litig., 2007 WL 1689899, 28 at *2 (N.D.Cal. June 11, 2007) (“[I]t is ‘well-settled that See Pier 1 Imports (U.S.) Inc., 631 F.3d - 90 - “Mindful have standing See Evans v. Linden 1 prior to the certification of a class, and technically 2 speaking before undertaking any formal typicality or 3 commonality review, the district court must determine that at 4 least one named class representative has Article III standing 5 to raise each class subclaim.’”) (quoting Wooden v. Bd. of 6 Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1287–88 (11th 7 Cir. 2001)). 8 Standing is an issue because, as plaintiffs stress, they 9 are seeking “only injunctive relief” in connection with their 10 working conditions claim, Pls.’ Supp. Br. (Doc. 302) at 25:20 11 (emphasis in original); but, plaintiff Estrada, as a former 12 Food City employee,44 lacks standing to sue for injunctive 13 relief against his former employer. 14 of Human Resources, 471 F.3d 1033, 1036, 1037 (9th Cir. 2006) 15 (former employee, who gave no indication in the complaint that 16 she was interested in returning to work for her former 17 employer, did not have standing to request injunctive relief 18 to force that former employer to “adopt and enforce lawful 19 policies regarding discrimination based on disability[]”); see 20 also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th 21 Cir. 1999) (“Unless the named plaintiffs are themselves See Walsh v. Nevada Dept. 22 23 24 25 26 27 28 44 There is a discrepancy between the FAC and plaintiff Estrada’s declaration in support of class certification in terms of his employment status. The FAC, filed March 11, 2004, alleges that plaintiff Estrada “is employed by . . . Bashas’ at a Food City Store.” FAC (Doc. 116) at 3:4-5, ¶ 7 (emphasis added). Estrada’s declaration filed September 27, 2004, explicitly declares, however, that he “worked at the Food City store . . . from April 1999 until July 2002.” Estrada Decl’n (Doc. 176) at 1:23-24, ¶ 1 (emphasis added). Given that unequivocal declaration, presumably the FAC inadvertently alleges that Mr. Estrada was employed at a Food City store in March, 2004. Thus, especially given that in Parra I this court relied upon that declaration for Estrada’s employment status, and that finding has never been challenged, the court will continue to treat him as a former Food City employee. See Parra I, 2005 WL 6182338, at *17. - 91 - 1 entitled to seek injunctive relief, they may not represent a 2 class seeking that relief.”). 3 Plaintiff Estrada’s lack of standing does not foreclose 4 plaintiffs from pursuing their working conditions claim, so 5 long as plaintiff Martinez has standing. 6 F.3d at 1021 (internal quotation marks and citations omitted) 7 (“In a class action, standing is satisfied if at least one 8 named plaintiff meets the requirements.”); see also Ellis I, 9 657 F.3d at 979 (“Because only one named Plaintiff must meet 10 the standing requirements, the district court did not err in 11 finding that Plaintiffs have standing.”) Again presuming that 12 she still is a Food City hourly employee, plaintiff Martinez 13 has standing to represent the Rule 23(b)(2) injunctive relief 14 class as to working conditions. 15 (“[O]nly current employees have standing to seek injunctive 16 relief.” 17 2559–60)).45 18 C. 19 Having found that one named plaintiff – Aurelia Martinez – See Stearns, 655 See Ellis I, 657 F.3d at 987 Ellis I, 657 F.3d at 988 (citing Dukes, 131 S.Ct. at Governing Legal Standards 20 has standing as to the working conditions claim, the court can 21 now turn to the issue of possible decertification of that claim 22 23 24 25 26 27 28 45 In contrast to standing, Title VII exhaustion is a pre-condition to bringing suit, and not jurisdictional. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (although Title VII requires that plaintiffs timely exhaust administrative remedies, “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling[]”). For that reason, and because the parties did not raise the issue of exhaustion with respect to the working conditions claim, the court declines to address it sua sponte. See Mounts v. California, 2009 WL 1084214, at *4 (E.D.Cal. April 22, 2009) (“The court is unaware of any authority that suggests that it has a sua sponte duty to address the issue of failure to plead exhaustion of administrative remedies.”) - 92 - 1 post-Dukes. Decertification “is committed to the sound 2 discretion of the district court.” 3 AMR Corp., 2005 WL 6523266, at *3 (C.D.Cal. Feb. 24, 2005) 4 (citation omitted), aff’d in part and rev’d in part on 5 different grounds, 265 Fed. Appx. 472 (9th Cir. 2008). 6 district court reevaluating the basis for certification may 7 consider its previous substantive rulings in the context of the 8 history of the case, and may consider the nature and range of 9 proof necessary to establish the class-wide allegations.” Cruz West World Travel, Inc. v. “[A] 10 v. Dollar Tree Stores, Inc., 2011 WL 2682967, at *3 (N.D.Cal. 11 July 8, 2011) (internal quotation marks and citation omitted). 12 Likewise, “district courts retain the authority to amend or 13 decertify a class if, based on information not available or 14 circumstances not anticipated when the class was certified, the 15 court finds that either is warranted.” Dukes II, 603 F.3d at 16 580 n. 4, rev’d on other grounds, Dukes, 131 S.Ct. 2541). 17 Thus, “‘[e]ven after a certification order is entered, the 18 judge remains free to modify it in the 19 developments in the litigation[,]’” United Steel Workers, 593 20 F.3d at 809 (quoting Falcon, 457 U.S. at 160) (other citations 21 omitted), including “changes in the law that make it no longer 22 proper for a class to be maintained.” 23 214856, at *5 (internal quotation marks and citations omitted); 24 see also Brady v. Deloitte & Touche LLP, 2012 WL 1059694, at 25 *4-*8 (granting motion to decertify a class because the 26 plaintiffs did “not show[] that the requirements of Rule 27 23(b)(3) [we]re met[]” after intervening Ninth Circuit and 28 Dukes decisions). - 93 - light of subsequent Estrella, 2012 WL 1 “In considering the appropriateness of decertification, 2 the standard of review is the same as a motion for class 3 certification: whether the Rule 23 requirements are met.” 4 Brady, 2012 WL 1059694, at *5 (N.D.Cal. March 27, 2012) 5 (citation omitted). 6 639 F.3d 942 (9th Cir. 2011), the Ninth Circuit found that on 7 defendant’s decertification motion “[t]he district court . . . 8 properly placed the burden on [the plaintiff] to demonstrate 9 that Rule 23's class-certification requirements had been met.” In Marlo v. United Parcel Serv., Inc., 10 Id. at 947-948. 11 procedure where “the proponent of a motion bears the initial 12 burden of showing that the motion should be granted, the Ninth 13 Circuit rule is that the party resisting the motion bears the 14 burden of showing that the motion should not be granted.” 15 Campbell v. PricewaterhouseCoopers, LLP, 287 F.R.D. 615, 619 16 (E.D.Cal. 2012) (citing Marlo., 639 F.3d at 947.46 17 that here, the plaintiffs retain the burden of “showing that 18 class certification is still warranted[.]” Id. Thus, in contrast to the standard motion That means 19 As previously discussed, this court, along with many 20 others, is of the view that the Supreme Court’s Dukes decision 21 22 23 24 25 26 27 28 46 Pre-Marlo, courts had held “that a party seeking decertification of a class should bear the burden of demonstrating that the elements of Slaven v. BP America, Rule 23 have not been established.” See, e.g., Inc., 190 F.R.D. 649, 651 (C.D.Cal. 2000) (emphasis in original); Gonzales v. Arrow Fin. Servs. LLC, 489 F.Supp.2d 1140, 1153 (S.D.Cal. 2007). Even post-Marlo, some courts have continued to allocate the burden in that way. See, e.g., Dalton v. Lee Publications, Inc., 2013 WL 2181219, at *3 (S.D.Cal. May 20, 2013) (citations omitted); Cole v. CRST, Inc., 2012 WL 4479237, at *3 (C.D.Cal. Sept. 27, 2012); Estrella v. Freedom Financial Network, LLC, 2012 WL 214856, at *4 (N.D.Cal. Jan. 24, 2012). Given the Ninth Circuit’s unequivocal holding in Marlo, however, this court agrees that to the extent courts have found that on a motion to decertify, it is the defendant’s burden to “demonstrat[e] that the elements of Rule 23 have not been established[,] . . . these cases are no longer good law.” Negrete v. Allianz Life Ins. Co. of N.Am., 287 F.R.D. 590, 598 n. 1 (S.D.Cal. 2012) (internal quotation marks and citation omitted). - 94 - 1 changed the legal landscape with respect to Rule 23(a)(2)’s 2 commonality requirement. 3 been anticipated when the working conditions class was 4 certified in 2005, is more than ample justification for 5 considering whether the working conditions class still can be 6 maintained in light of Dukes. That change, which could not have 7 D. 8 Plaintiffs assert that “certification of the working 9 Commonality conditions claim remains proper[]” because in Parra I this 10 court “identified a discriminatory practice[,]” which “meets 11 the standards for Rule 23(a) commonality.” 12 (Doc. 302) at 25:16-17. 13 plaintiffs have failed to “identify a specific policy or 14 practice[,]” much less one that “could have caused [the] 15 challenged working conditions. Def.’s Supp. Br. (Doc. 301) at 16 14:21-22; and Def.’s Resp. (Doc. 304) at 5:16 (emphasis in 17 original). 18 Pls.’ Supp. Br. Disagreeing Bashas’ asserts that The sole legal basis for plaintiffs’ argument that they 19 have identified a discriminatory practice is the following 20 excerpt 21 22 23 24 25 26 27 from Parra I: [P]laintiffs claim that [Bashas’] acted in a discriminatory manner by maintaining disparate working conditions in their stores. Unlike the numerous claims of discrimination articulated by the plaintiffs in Monreal, Plaintiffs here allege one main claim of a discriminatory practice or policy. Although the facts of each individual complaint may differ according to where and in what position the class member worked, viewed together they form a general claim that [Bashas’] holds a discriminatory policy or practice in relation to working conditions offered in its Food City stores. 28 Id. at 25:7-8 (quoting Parra I, 2005 WL 6182338, at *20 - 95 - 1 (emphasis added by plaintiffs); see also Pls.’ Reply (Doc. 303) 2 at 9:24 (same). 3 explain how the quoted rationale applies to the issue of Rule 4 23(a)(2) commonality, especially after Dukes. 5 Bashas’ response did not address plaintiffs’ reliance upon this 6 aspect of Parra I. 7 Significantly, plaintiffs do not attempt to Likewise, In any event, plaintiffs are disregarding the context of 8 the quoted rationale. At that point in Parra I, the issue was 9 not Rule 23(a)(2) commonality,47 as it is now. Instead, the 10 issue was the certifiability of the working conditions claim 11 pursuant to Rule 23(b)(2).48 12 sought, and more particularly, the availability of injunctive 13 or declaratory relief to the class as a whole. 14 (b)(2) class is the indivisible nature of the injunctive or 15 declaratory remedy warranted — the notion that the conduct is 16 such that it can be enjoined or declared unlawful only as to 17 all of the class members or as to none of them.” 18 S.Ct. at 2557 19 (emphasis added). 20 indivisibility of the relief sought is a separate issue from 21 whether plaintiffs’ working conditions claim satisfies Rule That Rule focuses on the relief “The key to the Dukes, 131 (internal quotation marks and citation omitted) It strikes the court, however, that 22 23 24 25 26 27 47 Tellingly, despite the explicit finding in Parra I that “on the issue of working conditions, the proposed class shares sufficient commonality to satisfy the minimal requirements of Rule 23(a)(2)[,]” plaintiffs did not even mention, much less rely upon, that finding to establish commonality after Dukes. See Parra I, 2005 WL 6182338, at *16. The court is compelled to agree with plaintiffs’ concession, albeit implicit, that the Parra I commonality finding could not withstand scrutiny in light of Dukes. 48 28 Seeming to recognize that distinction, plaintiffs’ reply argues that “this court properly certified the working conditions claim under Rule 23(b)(2)[.]” Pls.’ Reply (Doc. 303) at 6:18 (emphasis omitted) (italicized emphasis added). But again, that is not the issue now. - 96 - 1 23(a)(2)’s commonality requirement, particularly in the wake of 2 Dukes. 3 To be sure, “it is sufficient to meet the requirements of 4 Rule 23(b)(2) that class members complain of a pattern or 5 practice that is generally applicable to the class as a whole.” 6 Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) 7 (internal quotation marks and citations omitted). 8 token, however, plaintiffs did not offer any legal support, and 9 research did not reveal any, to support the view that just By the same 10 because Rule 23(b)(2) has been satisfied, so, too, has Rule 11 23(a)(2)’s commonality requirement. 12 not convinced that its Rule 23(b)(2) rationale in Parra I, 13 standing alone, supports a finding that plaintiffs have 14 satisfied Dukes’ commonality standards. 15 plaintiffs have not met their burden of “affirmatively 16 demonstrating” their compliance with Rule 23(a)(2), Dukes, 131 17 S.Ct. at 2551, and, concomitantly, that the working conditions 18 class still should be certified. 19 Therefore, the court is Accordingly, There are two other deficits in plaintiffs’ attempt to 20 show commonality which are particularly noteworthy after 21 Dukes, as Bashas’ points out. 22 failure to show that their working conditions claim 23 “depend[s] upon a common contention . . . that is capable of 24 classwide resolution[.]” See Dukes, 131 S.Ct. at 2551. 25 Unlike plaintiffs’ equal pay claim where, as discussed 26 herein, 27 claims for relief will produce a common answer to the crucial 28 question why was I disfavored[,]” plaintiffs have not made a The first is plaintiffs’ “examination of all the putative class members’ similar showing as to their working conditions claim. - 97 - See 1 id. 2 for class certification, plaintiffs did list a number of 3 alleged common issues of law and fact. 4 159) at 19:22-21:12. 5 plaintiffs have not explained how continued class 6 certification of the working conditions claim has “the 7 capacity . . . to generate common answers apt to drive the 8 resolution of th[is] litigation.” 9 2551 (internal quotation marks and citation omitted) 10 11 at 2552 (emphasis in original). In originally moving See Pls.’ MCC (Doc. But, in contrast to their pay claim, See Dukes, 131 S.Ct. at (emphasis in original). That omission is intertwined with the second weakness in 12 plaintiffs’ commonality proof – the insufficiency of their 13 anecdotal evidence. 14 proof that Wal-Mart operated under 15 discrimination” was entirely absent; and hence, plaintiffs 16 did not establish commonality. 17 (internal quotation marks omitted). 18 attempted to “identif[y] a common mode of exercising 19 discretion that pervade[d] the entire company” by relying 20 upon, inter alia, anecdotal evidence. 21 2555-56. 22 reporting experiences of discrimination 23 12,500 class members – relating to only 235 out of Wal-Mart’s 24 3,4000 stores”) were relatively small given the class size 25 (1.5 million). 26 Wal-Mart discriminated nation-wide, “more than half of the” 27 anecdotes 28 of all States ha[d] only one or two anecdotes; and 14 States The Dukes Court held that “significant a general policy of Dukes, 131 S.Ct. at 2553 In Dukes, plaintiffs Dukes, 131 S.Ct. at There, the anecdotes amassed (“120 affidavits – about 1 for every Further, although the plaintiffs alleged that were “concentrated in only six States. . . ; half - 98 - 1 ha[d] no anecdotes about Wal-Mart’s operations at all.” 2 at 2556 (citation omitted). 3 “[e]ven if every single one of th[o]se accounts [wa]s true, 4 that would not demonstrate that the entire company operate[s] 5 under a general policy of discrimination, . . . which is what 6 respondents must show to certify a companywide class.” 7 (internal quotation marks, citation and footnote omitted). 8 9 Id. The Dukes Court thus held that Id. The anecdotal evidence in the present case is similarly weak. In 2004, Food City had 58 stores. Def.’s exh. 1 10 (Proulx Aff.) at 3, ¶ 8. 11 only 11 declarations from putative class members, and two 12 other declarations. 13 former Food City employees, describe purportedly substandard 14 working conditions in at most nine of the 58, or 15.5%, of 15 Food City stores. 16 pertain to Food City store 59 which is “now closed.” 17 Supp. Br. (Doc. 301) at 6:25 (emphasis omitted). 18 of those declarations is that Food City stores have issues 19 with rodents, roaches, and poorly maintained equipment and 20 work areas. 21 veracity of all 13 of those accounts, “that would not 22 demonstrate that [Bashas’] operate[s] under a general policy 23 of discrimination” with respect to working conditions at its 24 Food City stores. 25 quotation marks and citation omitted). 26 Yet, plaintiffs are relying upon Those declarations, from current and Moreover, four of those declarations Def.’s The thrust As in Dukes, however, even assuming the See Dukes, 131 S.Ct. at 2556 (internal Besides the relatively few proffered declarations, 27 evidence is lacking “that the entire class was subject 28 the same allegedly discriminatory practice[.]” Ellis I, 657 - 99 - to 1 F.3d at 983 (emphasis added). 2 part, 3 countervailing declarations from Food City employees, many of 4 them Hispanic, from at least 33 different stores. 5 generally Def.’s Resp. MCC (Doc. 190), exh. 50-135 thereto. 6 This broader spectrum of proof readily shows that not all 7 Food City stores are as plaintiffs depict through their few 8 selective declarations. 9 Such evidence is lacking, in because the record includes more than 80 See This is not surprising given the acquisition history of 10 the Food City stores. 11 Michael Proulx, Bashas’ Executive Vice President and Chief 12 Operating Officer, Def.’s Resp. MCC (Doc. 190), exh. 3 13 thereto at 4:17-18, in the decade between 1994 and 2004, 14 Bashas’ rapidly “expanded[,] . . . , most notably in the Food 15 City format[.]” Id., exh. 1 thereto (Proulx Aff.) at 2, ¶ 8. 16 For example, in 1996, Bashas’ acquired 16 Mega Foods stores, 17 twelve of which eventually became Food City stores. 18 4, ¶ 11. 19 Id. at 4, ¶ 12. 20 condition.” 21 significant facility issues.” 22 situation when “[a]round 2001, Bashas’ purchased some ABCO 23 stores, some of which were converted to Bashas’ stores and 24 some of which were converted to Food City stores.” 25 ¶ 14. 26 conditions, ranging from being in good shape to needing much 27 improvement.” 28 As delineated in the affidavit of Id. at “Those stores were in vastly varying conditions.” “Some . . . were relatively new and in good Id. “Others were older stores that had Id. That was also the Id. at 4, “Again, these stores were in a variety of different Id. This acquisition history is significant because, inter - 100 - 1 alia, it further demonstrates the lack of a common answer to 2 the question of why was I disfavored as to working 3 conditions. 4 especially when read in the context of the acquisition 5 history of Food City stores, “is too weak to raise any 6 inference that” the working conditions at all Food City 7 stores were substandard because those stores employ a higher 8 percentage of Hispanics than do A.J.’s and Bashas’. 9 Dukes, 131 S.Ct. at 2556. Plaintiffs’ meager anecdotal evidence, See In short, plaintiffs have not, 10 as they must post-Dukes, shown that “there was ‘significant 11 proof that [Bashas] operated under a general policy of 12 discrimination[]’” with respect to working conditions that 13 could “affect the class as a whole.” 14 983 (quoting Dukes, 131 S.Ct. at 2553. 15 because it cannot survive Dukes, the court decertifies the 16 working conditions class previously certified in Parra I. 17 In sum, for all of the reasons set forth herein, the Ellis I, 657 F.3d at Accordingly, 18 court grants plaintiffs’ motion for class certification as 19 to the pay claim for monetary damages pursuant to 20 Fed.R.Civ.P. 23(b)(3), on behalf of current and former 21 employees. 22 Martinez shall serve as the class representatives for that 23 class. 24 previously certified in Parra I, however. 25 III. 26 Named plaintiffs Gonzalo Estrada and Aurelia The court decertifies the working conditions class Rule 23(f) Presumably, Bashas’ is continuing to “request[]” that 27 upon class certification, this court “recommend the 28 acceptance of a Rule 23(f) appeal.” - 101 - See Def.’s Resp. MCC 1 (Doc. 190) at 82:14 (emphasis added). That Rule states, in 2 relevant part, that “[a] court of appeals may permit an 3 appeal from an order granting or denying class-action 4 certification under this rule if a petition for permission 5 to appeal is filed with the circuit clerk within 14 days 6 after the order is entered.” 7 added). 8 court disagrees with Bashas’ reading thereof. 9 to permit an appeal from an order denying or granting of Fed.R.Civ.P. 23(f) (emphasis Given the unequivocal language of that Rule, this The authority 10 class certification lies with the court of appeals – not 11 with the district court. 12 23(f) does not contemplate a recommendation of such an 13 appeal, as Bashas’ urges. 14 request that this court recommend to the Ninth Circuit that 15 it accept an immediate appeal of the class certification 16 decision herein. It is equally clear that Rule The court thus denies Bashas’ 17 Relatedly, the court likewise presumes that Bashas’ 18 continues to seek a stay “pending Ninth Circuit action.” 19 Def.’s Resp. MCC (Doc. 190) at 82:15. 20 retain jurisdiction to stay its own order pending appeal. 21 See Fed.R.App.P. 8(a). 22 moved for such relief, and has not addressed the four-factor 23 balancing test which this Circuit applies in evaluating 24 whether to issue a stay. 25 F.3d 962, 964 (9th Cir. 2011). 26 motion can be read as seeking a stay pending appeal, the 27 court denies such relief. 28 . . . However, This court does Bashas’ has not explicitly See Leiva-Perez v. Holder, 640 Thus, to the extent Bashas’ - 102 - Conclusion 1 2 Accordingly, the court hereby ORDERS that Plaintiffs’ 3 Motion for Class Certification (Doc. 159) is GRANTED to the 4 extent they are seeking certification of a class with 5 respect to pay pursuant to Fed.R.Civ.P. 23(b)(3). 6 regard, the court certifies a class as follows: 7 8 9 10 11 12 In that All Hispanic workers currently and formerly employed by defendant Bashas’ Inc. in an hourly position at any Food city retail store since April 4, 1998, who have been subject to the challenged pay policies and practices. IT IS FURTHER ORDERED that the working conditions claim is DECERTIFIED; and IT IS FINALLY ORDERED that in conformity with 13 Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the 14 date of entry of this order, the parties shall submit 15 jointly an agreed upon form of notice, a joint proposal for 16 dissemination of the notice, and the time-line for opting 17 out of the action. 18 notice, which shall include mailing by first-class mail. 19 Plaintiffs must bear the costs of the DATED this 31th day of May, 2013. 20 21 22 23 24 25 26 27 Copies to all counsel of record 28 - 103 -

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