Brown et al v. WAL-MART STORE, INC., No. 5:2009cv03339 - Document 110 (N.D. Cal. 2012)

Court Description: ORDER granting 81 MOTION for Class Certification. Signed by Judge Edward J. Davila on August 24, 2012. (ejdlc2, COURT STAFF) (Filed on 8/24/2012)

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Brown et al v. WAL-MART STORE, INC. Doc. 110 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 NISHA BROWN, ET AL., Plaintiffs, 12 13 14 15 v. WAL-MART STORES, INC., Defendant. ) ) ) ) ) ) ) ) ) ) Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION (Re: Docket No. 81) 16 Pending before the court is Plaintiff Kathy Williamson’s (“Williamson”) motion for an 17 order (a) certifying the following class pursuant to Fed. R. Civ. P. 23(b)(3): “All persons who, 18 during the applicable statute of limitations, were employed by Wal-Mart in the State of California 19 in the position of Cashier”; (b) appointing Williamson as the class representative for the class; and 20 (c) appointing the following firms as Class Counsel: McInerney & Jones, Righetti Glugoski P.C., 21 and Dostart Clapp & Coveney, LLP. For the reasons discussed below the motion is GRANTED. 22 I. BACKGROUND 23 In a Complaint filed in the Superior Court of the County of Alameda on June 11, 2009, 24 Williamson and Plaintiff Nisha Brown (“Brown”) allege that Defendant Wal-Mart Stores, Inc. 25 (“Wal-Mart”) failed to provide its cashier employees, including Plaintiffs, with seats, despite the 26 fact that the nature of cashier work reasonably permits the use of seats. Plaintiffs allege this failure 27 to provide seats to cashiers violates Wage Order 7-2001, § 14 and Cal. Labor Code § 1198. Based 28 on these violations, Plaintiffs filed this class action under the California Private Attorney General 1 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION Dockets.Justia.com 1 Act of 2004 (“PAGA”), Cal. Labor Code § 2698, et seq. Compl. ¶¶ 17-18. On July 21, 2009, Wal- 2 Mart filed its Answer and removed the case to this court pursuant to § 4 of the Class Action 3 Fairness Act of 2005. Notice of Removal at 2-3. II. LEGAL STANDARDS 4 5 6 A. Wage Order 7-2001 Section 14 of California’s Industrial Welfare Commission Wage Order 7–2001 states: 7 14. Seats 8 (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. 9 United States District Court For the Northern District of California 10 11 12 13 (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. Cal. Code Regs. Tit. 8 § 11070(14). California’s Private Attorneys General Act of 2004 permits an “aggrieved employee” to 14 institute an action “on behalf of himself or herself and other current or former employees” to 15 collect civil penalties for a violation of any provision of the California Labor Code. Cal. Lab. Code 16 § 2699(a). California Labor Code Section 2699(f)(2) provides that “[i]f, at the time of the alleged 17 violation, the person employs one or more employees, the civil penalty is one hundred dollars 18 ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars 19 ($200) for each aggrieved employee per pay period for each subsequent violation.” 20 B. Class Certification 21 A party seeking class certification must provide facts sufficient to satisfy the requirements 22 of Federal Rule of Civil Procedure 23. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 23 1308-09 (9th Cir. 1977). Under Rule 23(a), a class may only be certified if: (1) the class is so 24 numerous that joinder of all members is impracticable; (2) there are questions of law or fact 25 common to the class; (3) the claims or defenses of the representative parties are typical of the 26 claims or defenses of the class; and (4) the representative parties will fairly and adequately protect 27 the interests of the class. Fed. R. Civ. P. 23(a). 28 2 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 In addition, the party seeking certification must show that the action falls within one of the 2 three subsections of Rule 23(b). In this case, Williamson seeks certification pursuant to 23(b)(3), 3 which permits certification of cases where “the court finds that the questions of law or fact 4 common to class members predominate over any questions affecting only individual members, and 5 that a class action is superior to other available methods for fairly and efficiently adjudicating the 6 controversy.” Fed. R. Civ. P. 23(b)(3). Williamson bears the burden of demonstrating that they 7 have met the four requirements of Rule 23(a), as well as the predominance and superiority 8 requirements of Rule 23(b)(3). See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th 9 Cir. 2001). United States District Court For the Northern District of California 10 11 12 III. DISCUSSION A. Wal-Mart Declarations Not Considered In Reaching This Decision As a preliminary matter, the court addresses whether it should consider the declarations 13 Wal-Mart has submitted in support of its opposition — specifically, the declarations of Keith 14 Hanleigh (Docket No. 85) and fourteen store associates (Docket No. 87): Khassan Abdallah, Marc 15 Aronsohn, Kathleen Billiet, Sandi Emery, Joshua Huston, Michael Lancaster, Synetria Petersen, 16 Edward Pettigrew, Juan Solis, Randall Sonderhouse, Joy Talbert, Lellani Ireton, Dottie Monahan, 17 and Karen Rocheleau. In her reply brief, Williamson argues that these declarations should be 18 stricken pursuant to Fed. R. Civ. P. 37(c)(1). 19 Fed. R. Civ. P. 26(a)(1)(A) requires parties to disclose the identity of witnesses who are 20 likely to have discoverable information supporting a party’s claims or defenses. Rule 26(e)(1)(A) 21 requires parties to supplement their prior disclosures “in a timely manner” when the prior response 22 is “incomplete or incorrect.” Rule 37(c)(1) provides that “[i]f a party fails to provide information or 23 identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that 24 information or witness to supply evidence on a motion . . . unless the failure was substantially 25 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “This particular subsection, implemented in the 26 1993 amendments to the Rules, is a recognized broadening of the sanctioning power. The Advisory 27 Committee Notes describe it as a ‘self-executing,’ ‘automatic’ sanction to ‘provide[ ] a strong 28 inducement for disclosure of material . . . .’” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 3 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 F.3d 1101, 1106 (9th Cir. 2001) (citations omitted). The Rule applies even where a party does not 2 violate an explicit court order, “and even absent a showing in the record of bad faith or 3 willfulness.” Id. Rule 37(c)(1) was amended in 2000 to “explicitly add[ ] failure to comply with 4 Rule 26(e)(2) as a ground for sanctions under Rule 37(c)(1), including exclusion of withheld 5 materials.” Fed. R. Civ. P. 37 Advisory Committee’s Note (2000). Nevertheless, “[t]wo express 6 exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the 7 parties’ failure to disclose the required information is substantially justified or harmless.” Yeti, 259 8 F.3d at 1106. 9 Williamson argues that none of these declarants’ identities were ever disclosed under Rule United States District Court For the Northern District of California 10 26, identified in response to interrogatories seeking the identity of any person who had facts that 11 supported Wal-Mart’s defenses, or otherwise disclosed to Plaintiffs. See Decl. Charles A. Jones 12 Supp. Pl.’s Reply, Docket No. 93 (“Jones Reply Decl.”) Ex. 1, Wal-Mart’s Feb. 12, 2010 Rule 26 13 Disclosures; Ex. 2, Wal-Mart’s March 30, 2010 Am. Resp. Special Interrog. No. 17. Rather, 14 Williamson asserts that the identity of these declarants were disclosed for the first time when Wal- 15 Mart filed its opposition to this motion. Thus, Plaintiffs were deprived of the opportunity to depose 16 these declarants, whose statements contradict the deposition testimony of Wal-Mart’s 30(b)(6) 17 witnesses. Wal-Mart has not argued, at the hearing or otherwise, that it had disclosed the identity of 18 these declarants or that its failure to do so was justified or harmless. 19 Thus, the court finds that Wal-Mart failed to disclose pursuant to Rule 26 the identities of 20 declarants Keith Hanleigh, Khassan Abdallah, Marc Aronsohn, Kathleen Billiet, Sandi Emery, 21 Joshua Huston, Michael Lancaster, Synetria Petersen, Edward Pettigrew, Juan Solis, Randall 22 Sonderhouse, Joy Talbert, Lellani Ireton, Dottie Monahan, and Karen Rocheleau. Accordingly, 23 these declarations will not be considered in support of Wal-Mart’s opposition to this motion 24 pursuant to Rule 37(c)(1). 25 B. Requests for Judicial Notice 26 Wal-Mart requests the court take judicial notice of the following documents: 27 1. December 5, 1986 DLSE Opinion Letter from Albert J. Reyff to Jacqueline Soufi, Request for 28 Judicial Notice Supp. Opp’n, Docket No. 83 (“Def.’s RJN”) Ex. A; 4 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 2. Declaration of Lloyd W. Aubrey, Jr. dated April 30, 2010, filed in San Diego County 2 Superior Court, Case No. 37-2009-00087938-CU-OE-CTL, Kristen Hall v. Rite Aid Corporation, 3 Id. Ex. B; 4 3. The Occupational Health and Safety Administration’s Guidelines for Retail Grocery 5 Stores, Id. Ex. C; and 6 4. Notice of Lodging of Proposed Order Dismissing Plaintiffs’ Complaint with Prejudice, 7 together with the [Proposed] Order Dismissing Plaintiffs’ Complaint with Prejudice, filed in the 8 United States District Court, Central District of California Case No. 11-CV-045710-R-AGR, 9 Rhonique Green and Olivia Giddings v. Bank of America, et al., Id. Ex. D. United States District Court For the Northern District of California 10 Williamson requests the court take judicial notice of the following documents: 11 1. December 16, 1979 Letter to the DLSE from Dora B. Finley; Pl.’s Request for Judicial Notice, 12 Docket No. 94 (“Pl.’s RJN”) Ex. A; 13 2. December 28, 1979 Opinion Letter from Margaret T. Miller to Dora B. Finley, Id. Ex. B. 14 Williamson does not object to the court taking judicial notice of the existence of the 15 documents provided by Wal-Mart. Williamson, however, objects to the court accepting the facts 16 asserted in the Aubry Declaration as true. Williamson also objects to Wal-Mart’s characterization 17 of the December 5, 1986 DLSE letter as a “DLSE opinion letter” and argues that it is instead akin 18 to an “advice letter.” See Pl.’s Reply Supp. Class Cert. at 14-15. Wal-Mart does not object to 19 Williamson’s request for judicial notice. 20 A “court may judicially notice a fact that is not subject to reasonable dispute because it . . . 21 can be accurately and readily determined from sources whose accuracy cannot reasonably be 22 questioned.” FRE 201(b). Because neither party objects to the court taking judicial notice of the 23 existence of these documents, the court GRANTS the requests for judicial notice. As Williamson 24 argues, however, “judicial notice of matters of public record is limited to the existence and 25 authenticity of a document; the veracity and validity of the contents remain open to dispute.” 26 Bernardi v. JPMorgan Chase Bank, NA., No. C–11–04543 RMW, 2012 WL 33894, *1 n. 1 (N.D. 27 Cal., Jan. 6, 2012). 28 5 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 C. Rule 23(a)(2) and (3): Commonality and Typicality; and Rule 23(b)(3) “The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as 2 3 guideposts for determining whether under the particular circumstances maintenance of a class 4 action is economical and whether the named plaintiff’s claim and the class claims are so 5 interrelated that the interests of the class members will be fairly and adequately protected in their 6 absence. Those requirements therefore also tend to merge with the adequacy-of-representation 7 requirement, although the latter requirement also raises concerns about the competency of class 8 counsel and conflicts of interest.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 9 157–158, n. 13 (1982). The class members’ “claims must depend upon a common contention . . . . United States District Court For the Northern District of California 10 That common contention, moreover, must be of such a nature that it is capable of classwide 11 resolution—which means that determination of its truth or falsity will resolve an issue that is 12 central to the validity of each one of the claims in one stroke.” Wal–Mart Stores, Inc. v. Dukes, 131 13 S.Ct. 2541, 2551 n. 5 (2011). 14 Williamson argues that the class members share the common issue of whether Wal-Mart’s 15 policy of not providing seats to its cashiers 1 in California stores violates Section 14 because the 16 nature of a Wal-Mart cashier’s work reasonably permits the use of seats. 17 1. Common Policy Not To Provide Seats 18 Williamson argues that all California cashiers have suffered the same injury because Wal- 19 Mart has a uniform policy of not providing them seats. “Claims alleging that a uniform policy 20 consistently applied to a group of employees is in violation of the wage and hour laws are of the 21 sort routinely, and properly, found suitable for class treatment.” Brinker Restaurant Corp. v. 22 Superior Court, 53 Cal. 4th 1004, 1033 (2012). Even if there is an express policy in compliance 23 with labor regulations, “an employer may not undermine a formal policy [that is in compliance 24 with labor regulations] by pressuring employees to perform their duties in ways that [violate the 25 regulations].” Id. at 1040. Plaintiff needs to offer “substantial evidence” of the company-wide 26 27 1 28 The job title “Cashier” in this motion and class definition refers to “only the positions with Job Code 30548.” Pl.’s Reply Supp. Class Cert. at 10:26-28, Docket No. 92. 6 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 policy or practice that violated regulations. See id. at 1051–52; Garvey v. Kmart Corp., No. C 11- 2 02575 WHA, 2012 WL 2945473, at *4 (N.D. Cal. July 18, 2012). 3 Here, there is substantial evidence that Wal-Mart had a common policy of not providing seats to its cashiers in its California stores. Herminio Vargas (“Vargas”), Wal-Mart’s 30(b)(6) 5 designee on Wal-Mart’s polices regarding the use of a seat, testified that, although Wal-Mart will 6 provide stools to particular cashiers as a reasonable accommodation for a disability and as a job aid 7 for a medical condition, outside of those two circumstances, Wal-Mart does not provide seats to its 8 cashiers. Decl. Charles A. Jones Supp. Pl.’s Mot. (“Jones Decl.”) Ex. 19, Rule 30(b)(6) Designee 9 Vargas Dep. at 19:9-24, Docket No. 81-7. Vargas’s testimony during his Rule 30(b)(6) deposition 10 United States District Court For the Northern District of California 4 that cashiers, who do not qualify for a disability-related accommodation or a medically-related job 11 aid, are not provided seats is binding on Wal-Mart. See, e.g., Calpine Corp. v. Ace American Ins. 12 Co., No. C 05-00984 SI, 2007 WL 3010570, at *7 (N.D. Cal. Oct. 12, 2007). There is also 13 evidence that requests for seats by cashiers were denied. Of the thirty-nine requests for stools as an 14 accommodation or job aid, Wal-Mart provided stools to twenty-nine California cashiers. 2 Jones 15 Decl. Ex. 25, 1/18/2001 and 2/15/2011 E-mails from Defense Counsel (listing requests made for 16 the use of stools by California cashiers during the class period as well as the disposition of each 17 request). 18 Wal-Mart argues that it had a policy that if a cashier requested a seat, a manager could 19 exercise her discretion in considering the request based upon the particular circumstances at issue. 20 Def. Wal-Mart’s Opp’n at 9:2-4. Wal-Mart, however, has not argued that employees were notified 21 that they could make such a request, and Wal-Mart has not provided any evidence that any 22 employee received a seat through this process. Additionally, the Hanleigh Declaration that 23 describes the policy of discretionarily providing a seat upon request has been excluded from 24 consideration pursuant to Fed. R. Civ. P. 37(c)(1) and directly contradicts Vargas’ 30(b)(6) 25 testimony. Finally, despite Wal-Mart’s current lack of evidence, if some employees were provided 26 a seat upon request outside of the accommodation and job aid program, the proposed class also 27 2 28 At oral argument, Williamson clarified that these twenty-nine cashiers “would be excluded from the class during the period of time in which they were allowed to use the seats.” Tr. at 41:24-42:16, Docket No. 101. 7 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 shares the common issue concerning whether, under the proper interpretation of the Wage Order, 2 an employer’s duty to provide a seat is triggered only after employee specifically requests a seat. 3 3 In sum, Williamson has presented evidence that Wal-Mart’s witness admitted Wal-Mart 4 does not provide seats to cashiers unless the cashier has a disability or medical condition; there is 5 evidence that requests for seats by cashiers were denied; there is no evidence that that any policy 6 that seats would be provided upon request was actually told to cashiers; and there is no evidence 7 that any cashier, who did not have a disability or medical condition, received a seat after making a 8 request. Thus, Williamson has provided substantial evidence that Wal-Mart had a common policy 9 of not providing seats to its cashiers in California stores and that these cashiers share a common United States District Court For the Northern District of California 10 injury. See Garvey, 2012 WL 2945473, at *3 (finding substantial evidence that Kmart had a 11 common policy of not providing seats to its cashiers where Kmart’s witnesses argued that they did 12 not believe that it was good business for cashiers to have seats; there was some evidence that 13 requests for seats by cashiers were denied; and there was little evidence showing that the purported 14 policy that seats would be proved upon request was actually told to cashiers.) 15 2. Common Nature of the Work 16 There is persuasive evidence that Wal-Mart cashiers spent the majority of their time 17 working at registers during the class period. See, e.g., Jones Reply Decl. Ex. 5, Rule 30(b)(6) 18 designee John Crecelius Dep. (“Crecelius Dep.”) at 22:5-23:4 (cashiers spend 68% of their time at 19 3 20 21 22 23 24 25 26 27 28 District courts in this Circuit have disagreed regarding whether an employer need not make seating available until requested by employees. Compare Echavez v. Abercrombie and Fitch Co., Inc., No. CV 11–9754 GAF (PJWx), 2012 WL 2861348, at *4 (C.D. Cal. Mar. 12, 2012) (“Nothing in the language of § 14 suggests that the employee is required to ‘want’ or ‘request’ a seat before its protections apply. . . . although an employer need not force an employee to sit down, the employer is under an obligation to make suitable seating available for employees’ use. Thus, Plaintiff is not required to allege that she requested or communicated a desire for a seat in order to state a claim for violation of Cal. Lab.Code section 1198 and Wage Order 7–2001 § 14.”) with Def.’s RJN Ex. D., Transcript of July 18, 2011 Motion Hearing in Green v. Bank of Am. N.A., No. CV 11–45751–R (C.D. Cal.) (finding that under § 14, the employer’s “only obligation was to make seats available to its employees to the extent they want them or request them, not necessarily to ensure that every employee has a seat, regardless of whether they want one or not.” Id. at 4:13–17. The court dismissed the claim because the plaintiffs “ha[d] not alleged any facts to suggest that they ever requested a seat, were ever denied a seat, or even that they wanted a seat.” Id. at 4:17– 19.) This court need not decide this issue at this time because Williamson has provided substantial evidence that Wal-Mart had a policy of not providing seats to cashiers except when the cashier had a disability or a medical reason. Wal-Mart has not offered any evidence that, outside of those two circumstances, it had a policy of discretionarily providing seats upon request, any class member received a seat, or the class members were aware that they could be provided a seat if requested. 8 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 a cash register station) and 32:21-24 (primary job function of a cashier is to check customers in and 2 out); Jones Reply Decl. Ex. 3, Rule 30(b)(6) designee Jackie Grube Dep. (“Grube Dep.”) at 22:11- 3 23 (primary duty of cashiers is to operate a cash register). It is undisputed that common tasks for every Wal-Mart cashier working at his or her 5 register included scanning items; bagging items; loading them into the customer’s cart; walking to 6 the entrance of their line to signal to customers it is open; assisting with stocking of end-cap 7 merchandise and damaged goods, etc.; wiping down their register and ensuring it is neat and 8 clutter-free; and taking unwanted items to the customer service desk or restocking items. Opp’n at 9 5-6. Williamson argues that a trier of fact could determine whether these common tasks could 10 United States District Court For the Northern District of California 4 reasonably be performed while seated, and such a determination would apply to all Wal-Mart 11 cashiers at its California stores. 12 Wal-Mart argues that individual differences between cashiers’ experiences prevent any 13 common conclusion regarding whether a seat should be provided to all cashiers. Specifically, Wal- 14 Mart cites (1) the variation in cash-register configurations, (2) the particular shift a cashier is 15 working, (3) the type of merchandise processed at different registers, (4) how and if merchandise is 16 bagged and loaded in the cart, (5) time of year, (6) experience of the cashier, (7) store staffing, and 17 (8) the amount of damages due each cashier if liability is found. Opp’n at 5:16-20, 23:10-12. 18 First, Wal-Mart argues that there are twelve different configurations for the checkout 19 register areas in the 180 California Wal-Mart stores and the configuration would affect whether 20 there could be suitable seating. Opp’n at 1:10-13. Wal-Mart argues that “[t]hese twelve different 21 configurations include belted front-end registers, non-belted front-end ‘speedy’ or ‘express’ 22 registers, a front-end tobacco register with a gated area and bullpen, a front-end ‘Que Track’ 23 system consisting of five non-belted registers but a single customer queue, and numerous outlying 24 registers located in any one of eight different departments including the Garden Center. Although 25 the registers themselves are similar, the check-out configurations and type of merchandise 26 processed is vastly different depending on where in the store the register is located and the type of 27 store at issue (Supercenter or Discount Store). Consequently, the degree of mobility required of any 28 9 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 cashier will vary depending upon the particular check out location at which the cashier is working.” 2 Opp’n at 5:1-9 (internal citations to excluded declarations omitted). Wal-Mart’s argument fails for two reasons. First, Wal-Mart’s 30(b)(6) designee Jakie 3 4 Grube testified that, regardless of the location or configuration of the cash register station or the 5 checkout lane, the job duties of all California cashiers are the same, Wal-Mart’s expectations 6 regarding the type of work that cashiers perform are the same, the physical activities that they 7 perform are the same, and the essential functions of their position are the same. Jones Decl. Ex. 8, 8 Grube Dep. at 33:20-34:21. When specifically asked about a speedy checkout, a belted checkout, 9 or a self-checkout, Grube again testified that these types of tasks performed by cashiers at those United States District Court For the Northern District of California 10 checkout configurations are the same. Id. Additionally, any variance in the work performed at 11 outlying registers in specific departments 4 that are not at the main front-end register bank is 12 irrelevant because the persons who access those outlying registers normally are not cashiers and 13 instead have a different titled position. Jones Reply Decl. Ex. 5, Crecelius Dep. at 104:12-105:16; 14 see also Jones Reply Decl. Ex. 9 at 2 (listing different job titles for associates employed in Lawn & 15 Garden, Sporting Goods and Photo Departments). 16 Wal-Mart’s next five arguments—that whether a seat must be provided depends on 17 individual differences depending on the shift, the type of merchandise, if merchandise is bagged 18 and loaded in the cart, time of year, experience of the cashier, and store staffing—fail for similar 19 reasons. Any evidence Wal-Mart submitted indicating that these factors vary between cashiers and 20 affect whether a cashier’s work permits the use of a seat has been excluded pursuant to Fed. R. Civ. 21 P. 37(c)(1). Additionally, Wal-Mart’s 30(b)(6) witness Jackie Grube testified that “[n]o matter 22 what shift they worked on” there is no difference in cashiers’ job responsibilities, essential 23 functions, and physical activities, a statement that directly contradicts Wal-Mart’s opposition. 24 Jones Reply Decl. Ex. 3, Grube Dep. at 19:14-23. Additionally, any variance associated with the 25 type of merchandise purchased at the outlying registers is irrelevant because, as discussed above, 26 cashiers do not operate those registers. Finally, Wal-Mart’s general arguments about potential 27 4 28 These department include Tire and Lube Express, Electronics, Lawn & Garden, Seasonal, Pharmacy, Deli, Sporting Goods, Jewelry, Hardware, and Apparel. at 104:12-20. 10 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 differences between the work of different cashiers, unsupported by evidence, are insufficient to 2 show that individual inquiries outweigh the predominate issue of whether the common duties for 3 all Wal-Mart cashiers permits seating. Two other courts in this Circuit have recently evaluated whether a class of retail cashiers 5 should be certified for purposes of determining whether the employer violated Section 14 by not 6 providing them seats. In Garvey v. Kmart, a court in this District certified a class of Kmart cashiers 7 in one store and found that the “minor variances” in (1) physical stature of each cashier, (2) cash- 8 register configurations (3) the time spent at the front-end cash register versus performing other 9 duties in the store, and (4) the amount of damages due each cashier were not “sufficient to defeat 10 United States District Court For the Northern District of California 4 class certification when Kmart cashiers spent the majority of their time performing common tasks 11 at their registers, and Kmart has a common policy of not providing seats.” See Garvey, 2012 WL 12 2945473, at *4. In Kilby v. CVS Pharmacy, Inc., however, a court in the Southern District of 13 California denied a motion to certify a class of CVS cashiers because CVS could not be “held 14 liable based on the generally known fact that its Clerk/Cashiers sometimes operate cash registers” 15 and “CVS offer[ed] proof that Clerk/Cashiers’ job duties are inconsistent from day to day, shift to 16 shift, or even from store to store” that suggested “an individualized, fact-intensive analysis is 17 necessary.” Kilby v. CVS Pharmacy, Inc., No. 09cv2051–MMA (KSC), 2012 WL 1132854, at *5- 18 6 (S.D. Cal. Apr. 4, 2012). 19 Unlike the defendant in Kilby, here, Wal-Mart has not offered proof that the nature of the 20 work varies between individual cashiers. Instead, Wal-Mart’s 30(b)(6) witnesses have provided 21 evidence to the contrary. See, e.g., Jones Decl. Ex. 8, Grube Dep. at 33:20-34:21; Jones Reply 22 Decl. Ex. 3, Grube Dep. at 19:14-23. Wal-Mart’s 30(b)(6) witnesses have also established that 23 cashiers spend the majority their time operating a cash register. See, e.g., Jones Reply Decl. Ex. 5, 24 Crecelius Dep. at 22:5-23:4 (cashiers spend 68% of their time at a cash register station) and 32:21- 25 24 (primary job function of a cashier is to check customers in and out); Jones Reply Decl. Ex. 3, 26 Grube Dep. at 22:11-23 (primary duty of cashiers is to operate a cash register). Thus, the evidence 27 presented to this court establishes facts more similar to the facts in Garvey than in Kilby. As in 28 Garvey, none of the potential sources of variance that Wal-Mart relies upon are sufficient to defeat 11 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 class certification when Wal-Mart cashiers spend the majority of their time performing common 2 tasks at their registers, and Wal-Mart has a common policy of not providing seats. 3 Lastly, Wal-Mart argues that there are individual issues about the amount of statutory 4 damages due if liability is found; the enormous penalties sought bear no relation to any harm 5 incurred; and that PAGA expressly preserves workers’ compensation as the exclusive remedy for 6 injury or death. A violation of Section 14 may subject an employer to a penalty of up to $100 per 7 person, per pay period, for the initial violation, and $200 per person, per pay period, for each 8 subsequent violation. Cal. Lab. Code § 2699(f)(2). The court, however, can award a lesser amount 9 than the maximum civil penalty amount specified if, based on the facts and circumstances of the United States District Court For the Northern District of California 10 particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or 11 confiscatory. Id. § 2699(e)(2). 12 Wal-Mart’s argument that this discretion requires an individualized inquiry and defeats 13 certification is unpersuasive. As discussed above, Wal-Mart had a common policy of not providing 14 seats to cashiers and the question of whether this policy violated Section 14(A) is amenable to class 15 adjudication. California labor law is clear that “[a]s a general rule if the defendant’s liability can be 16 determined by facts common to all members of the class, a class will be certified even if the 17 members must individually prove their damages.” Brinker Restaurant Corp. v. Superior Court, 53 18 Cal. 4th 1004, 1022 (2012); see also Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996) 19 (approving the use of a statistical sample of the class claims to determine damages); Garvey, 2012 20 WL 2945473, at *5 (certifying class of Kmart cashiers and finding the issue of damages from 21 Section 14 violation could be resolved through sampling). Thus, the issue of damages can be 22 resolved after the common issue of liability is resolved. Wal-Mart’s remaining arguments fail 23 because Section 2699(e)(2) allows for the penalty to be lessened and thus would prevent an unjust 24 award of penalties, and Wal-Mart has not shown that statutory penalties under PAGA for the 25 deprivation of a seat in violation of Section 14 is compensation for injury or death that would be 26 exclusively provided for by workers’ compensation. 27 28 For these reasons, the controversy is appropriate for class treatment because Wal-Mart had a common policy of not providing seats for cashiers. A class action is superior to other methods for 12 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION 1 fairly and efficiently adjudicating the controversy because it would not be cost-effective for each 2 Wal-Mart cashier to bring an individual lawsuit, given that each cashier only has a relatively small 3 financial interest. Williamson’s claim is typical of the class claim because she was a Wal-Mart 4 cashier at a California store, performed tasks common to Wal-Mart cashiers, and was not provided 5 with a seat. Jones Decl. Ex. 26, Williamson Decl. ¶¶ 2-4. 6 C. Rule 23(a)(4): Adequacy of Representative Plaintiff and Class Counsel Rule 23(a) requires is that the representative parties “fairly and adequately protect the 8 interests of the class.” Fed. R. Civ. P. 23(a)(4). “Resolution of two questions determines legal 9 adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interests with other 10 United States District Court For the Northern District of California 7 class members; and (2) will the named plaintiffs and their counsel prosecute the action vigorously 11 on behalf of the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (citation 12 omitted). The adequacy requirement is met here. 13 Plaintiffs’ counsel is experienced in both labor law and class actions. McInerney & Jones, 14 Righetti Glugoski P.C., and Dostart Clapp & Coveney, LLP have been involved in over fifty class 15 actions, many of which are employment related. Jones Decl. ¶¶ 4-8. The claims made by 16 Williamson, as well as the relief sought, are similar to those of the class that Williamson seeks to 17 represent. Williamson declares that she has no conflict with the interests of other class members. 18 Jones Decl. Ex. 26, Williamson Decl. ¶ 7. 19 Wal-Mart, however, argues that Williamson cannot adequately represent the class members 20 because many of the class members have attested that a seat would hinder them in the performance 21 of their duties and do not wish to have seats forced on them. Again, the declarations Wal-Mart cites 22 in support of this argument have been excluded under Fed. R. Civ. P. 37(c)(1). Additionally, the 23 argument that cashiers would have seats forced upon them is unpersuasive. Williamson has not 24 argued that Section 14’s requirement that “employees shall be provided with suitable seats” means 25 that cashiers who do not want to use a seat would have a seat forced upon them. Cal. Code Regs. 26 Tit. 8 § 11070(14). Wal-Mart also argues that Brown cannot adequately represent the class 27 members because she has credibility issues. Brown, however, has not moved to become the class 28 representative. 13 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION Thus, the court finds that Williamson and McInerney & Jones, Righetti Glugoski P.C., and 1 2 Dostart Clapp & Coveney, LLP can adequately protect the interests of the class. 3 D. Rule 23(a)(1): Numerosity The numerosity requirement does not mean that the class must be so numerous that joinder 4 5 Is impossible but rather simply that joinder of the class is impracticable. Arnold v. United Artists 6 Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994). In this case, Wal-Mart has employed 7 over 10,000 cashiers in California during the applicable statute of limitations period. Jones Decl. 8 Ex. 2, Defendant’s March 30, 2010, Amended Response to Special Interrogatory No. 6 (Wal-Mart 9 “estimates it employs approximately 10,000 Cashiers at any given time within California.”); Ex. l, United States District Court For the Northern District of California 10 Defendant’s January 20, 2011 Amended Response to Special Interrogatory No. 6 (Wal-Mart 11 “estimates it employed 22,572 front-end Cashiers in its California Wal-Mart Stores” but that 12 number may be inflated because, if an employee was employed multiple different times that 13 employee is counted separately for each employment period.). Thus, the class is sufficiently 14 numerous. IV. CONCLUSION 15 16 For the reasons stated, Williamson’s motion for class certification is GRANTED. This 17 order certifies the following class under Rule 23(b)(3) to pursue a claim for violation of Wage 18 Order 7–2001(14) against Wal-Mart: 19 “All persons who, during the applicable statute of limitations, were employed by Wal- 20 Mart in the State of California in the position of Cashier.” 21 The class definition shall apply for all purposes, including settlement. This order 22 APPOINTS Kathy Williamson as class representative. Pursuant to Rule 23(g), this order 23 APPOINTS the following firms as class counsel: McInerney & Jones, Righetti Glugoski P.C., and 24 Dostart Clapp & Coveney, LLP. 25 Dated: 26 27 28 14 Case No.: 5:09-CV-03339 EJD ORDER GRANTING MOTION FOR CLASS CERTIFICATION

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