Nigro v. Sears: District Court Erred in Disregarding Plaintiff's Self-Serving Testimony on Summary Judgment

In Nigro v. Sears, Roebuck & Co., ___F.3d ___ (9th Cir. 2/25/15), the plaintiff sued the defendant, Sears, for disability discrimination under the FEHA and wrongful termination. The district court granted Sears's motion for summary judgment, and Nigro appealed.

The Ninth Circuit reversed, holding that Nigro's deposition and declaration testimony, while self-serving, stated more than mere conclusions, and the district court should not have disregarded them.

Here, Nigro's declaration and deposition testimony, albeit uncorroborated and self-serving, were sufficient to establish a genuine dispute of material fact on Sears's discriminatory animus. He related statements made to him both in person and over the telephone. His testimony was based on personal knowledge, legally relevant, and internally consistent. We conclude that the district court erred in disregarding Nigro's testimony in granting Sears's motion for summary judgment.

The opinion is available here. 

Turner v. San Francisco: First Amendment Does Not Protect Employee Complaints that Are Motivated by Self-Interest, and Employee Cannot State Claim for Wrongful Termination

In Turner v. City and County of San Francisco, ___ F.3d ___ (9th Cir. 6/11/15), the plaintiff, Turner, sued the City and County of San Francisco (City), alleging that it terminated him in violation of public policy after he complained that the City improperly employed him and others as temporary exempt, rather than permanent civil service, employees. The district court dismissed the case, holding that he failed to state a claim for retaliation under the First Amendment because he had not alleged facts demonstrating that he had engaged in protected speech. Turner appealed, and the Ninth Circuit affirmed, holding that Turner's complaints were not protected by the First Amendment because they did not address a "matter of public concern." 

[A]lthough Turner’s complaint “ostensibly could invoke a matter of public concern, as it discusses civil service rules prescribed by local law, . . . Plaintiff’s voiced complaint was focused on and driven by his internal grievance.” In other words, Turner’s complaints—while potentially significant in their implications—arose primarily out of concerns for his own professional advancement, and his dissatisfaction with his status as a temporary employee.

The opinion is available here.

Williams v. Superior Court (Pinkerton Governmental Services): Trial Court Cannot Split PAGA Action and Compel Arbitration of Individual Issues

Williams v. Superior Court (6/9/15) --- Cal.App.4th ---, is one of those rare opinions that is written clearly and concisely. The introduction gives you almost all you need to know:

Petitioner Andre Williams filed a single-count representative action pursuant to the Private Attorney General Act, Labor Code section 2699 et seq. (PAGA), alleging that real party in interest Pinkerton Governmental Services, Inc. (Pinkerton) violated various provisions of the Labor Code [related to rest periods]. In response, Pinkerton moved to enforce petitioner’s waiver of his right to assert a representative PAGA claim, or alternatively, for an order staying the PAGA claim, but sending the “individual claim” that petitioner had been subjected to Labor Code violations to arbitration pursuant to a written agreement. The trial court denied the motion to enforce the waiver, but granted the alternative relief. Williams petitioned this court for a writ reversing the trial court’s order, arguing that it violated Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384 (Iskanian). We agree with the trial court that under Iskanian, the waiver of a right to assert a representative PAGA claim in any forum is unenforceable. However, we conclude that petitioner’s single cause of action under PAGA cannot be split into an arbitrable “individual claim” and a nonarbitrable representative claim. Accordingly, we grant the petition.

A little additional detail: Pinkerton argued, and the trial court agreed, that there was a "threshold dispute" as to whether Pinkerton denied the plaintiff rest periods, and that Pinkerton had the right to compel the plaintiff to arbitrate this dispute. The Court of Appeal rejected this argument.

The opinion is available here.

Campbell-Ewald Co. v. Gomez: Supreme Court to Address Settlement Offers and the "Headless" Class Action

In Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (discussed here), the plaintiff filed a class action for violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), alleging that the defendant instructed or allowed a third party to send unsolicited text messages to him and others. The defendant offered to settle the case by paying the plaintiff $1,503 per violation, plus costs. The plaintiff rejected the offer.

The district court granted summary judgment on other grounds, and the plaintiff appealed. The defendant argued that the Court of Appeals lacked jurisdiction because the offer of compromise mooted the plaintiff's individual and class claims. The Ninth Circuit rejected this argument, holding that an unaccepted Rule 68 offer of compromise that would fully satisfy a plaintiff's claim does not moot either the individual or class claim. The Court distinguished Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523 (2013) (discussed here) on grounds that Genesis Healthcare was a putative collective action under the Fair Labor Standards Act (FLSA), rather than a Rule 23 class action, and the precedents established in FLSA collective actions do not apply in Rule 23 class actions.

The United States Supreme Court granted certiorari on May 18. Campbell-Ewald Company v. Gomez, case no. 14-857, will be heard next term. SCOTUSblog has a page for the case here. The Ninth Circuit opinion is available here.

Tyson Foods v. Bouaphakeo: Supreme Court Will Revisit Class Action Standards

In Bouaphakeo v. Tyson Foods, Inc., ___ F.3d ___ (8th Cir. 2014), the plaintiffs sued their employer, Tyson, under the federal Fair Labor Standards Act (FLSA) and state law. They alleged that Tyson failed to compensate them for time spent donning and doffing personal protective equipment and clothing and time spent transporting these items from lockers to the production floor.

The district court certified the case as a FLSA collective action under 29 U.S.C. § 216(b) and a class action under Federal Rule of Civil Procedure 23. At trial, the plaintiffs "proved liability and damages by using individual timesheets, along with average donning, doffing, and walking times calculated from 744 employee observations." The jury returned a verdict in favor of the employees, and the court entered judgment. Tyson appealed, and the Eighth Circuit Court of Appeal affirmed, holding as follows:

The district court did not err in granting certification. Tyson had uniform policies that affected all class members, and time studies showed that the employees were underpaid. Certification was proper even if evidence at trial showed that some employees worked no overtime and could not recover damages.

The employees did not rely improperly on a formula to prove liability and damages at trial. The employees proved liability "for the class as a whole, using employee time records to establish individual damages." Because Tyson had no records of actual donning, doffing, and walking time, the employees could show their damages "as a matter of reasonable inference."

The Eighth Circuit opinion is available here.

The United States Supreme Court granted certiorari on June 8, 2015. Tyson Foods, Inc. v. Bouaphakeo, case no. 14-1146, will be heard next term. SCOTUSblog, which is the best resource for all things SCOTUS, has a page for the case here. 

Khalatian v. Prime Time Shuttle: Under Federal Arbitration Act, Shuttle Driver's Misclassification Claims are Subject to Arbitration

In Khalatian v. Prime Time Shuttle (5/15/15) --- Cal.App.4th ---, the plaintiff brought an individual claim against the defendants, alleging that they misclassified him as an independent contractor, rather than as an employee. The defendants petitioned to compel arbitration, and the trial court denied the petition. The Court of Appeal reversed, holding as follows:

The Federal Arbitration Act (FAA) applied because the plaintiff was a shuttle driver who picked up and dropped off people primarily at LAX, and thus was involved in interstate commerce.

The arbitration agreement covered the plaintiff's allegation that he was misclassified. The agreement provided that "any controversy or claim ... arising out of or relating to" the parties' agreement, including any argument that the agreement was void or voidable, would be subject to arbitration. The plaintiff's claim that the agreement was void or voidable under California wage law arose out of and related to the parties' agreement. The fact that the plaintiff asserted statutory wage claims did not change this analysis.

The defendants did not waive their right to compel arbitration, even though they litigated for 14 months in court before filing their petition to compel. Waivers are not approved lightly, and the party claiming waiver bears a heavy burden of proof. 

Only one defendant served any discovery, and that discovery was limited. The plaintiff produced 177 pages of documents and gave little or no information in response to interrogatories. No depositions were taken and no discovery motions were filed. 

Other motion work also was limited. The defendants demurred to the complaint, but withdrew the demurrer when the parties agreed to allow the plaintiff to amend. 

Even though the defendants litigated for 14 months, the delay caused the plaintiff no prejudice. The defendants did not stretch out the litigation, and the trial date was more than a year away when the defendants filed their petition.

The opinion is available here. 

Gerard v. Orange Coast Memorial Medical Center: Cal. Supreme Court to Address Validity of Wage Order Allowing Second Meal Period Waivers for Employees in the Health Care Industry

This is one for the wage and hour wonks.

In Gerard v. Orange Coast Memorial Medical Center (2/10/15) 234 Cal.App.4th 285, the Court of Appeal held that section 11(D) of Wage Order No. 5 is invalid to the extent that it conflicts with Labor Code section 512. Section 512 requires two meal periods for work periods of more than than ten hours, but allows employees to waive their second meal periods if the total hours worked is no more than twelve hours. Wage Order 5, section 11(D), allows employees in the health care industry who work shifts in excess of eight total hours in a workday to waive their second meal periods. It is not limited to shifts of less than twelve hours. The Court held that the IWC exceeded its authority by creating an exception to section 512's the meal period requirements. Finally, the Court allowed the plaintiffs to seek Labor Code section 226.7 premiums for failure to provide second meal periods for the full three year statutory period. 

The California Supreme Court granted review on May 20, 2015. The Court stated the issues on review as follows:

(1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512, subdivision (a)?  

(2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively?

Gerard v. Orange Coast Memorial Medical Center is case no. S225205, and the Court's web page for it is here. You can sign up for email updates from the Court here. 

Allen v. Bedolla: Ninth Circuit Addresses Class Settlement Standards

In Allen v. Bedolla, ___ F.3d ___ (9th Cir. 6/2/15), the parties settled a wage and hour class and collective action on the following terms: (1) gross settlement fund of $4.5 million, with distributions on a claims made basis and all unclaimed funds (other than fees and administrative costs) reverting to the employer; (2) stipulated injunctive relief; and (3) attorney fees of up to 25% of the gross settlement fund. The district court granted preliminary approval, notices went out, and approximately 15,000 settlement class members filed claim forms, equating to a maximum of $375,000 in payment to settlement class members.

The plaintiffs in a separate class action then sought to intervene and objected to the settlement, but the court denied their intervention motion and overruled their objections. The court granted final settlement approval, and the intervenors/objectors appealed.

The Ninth Circuit affirmed in part and reversed and remanded in part, holding as follows:

The court properly denied the motion to intervene. Although the court did not give its reasons for denying the motion, the Ninth Circuit affirmed on grounds that the intervention motion was not timely, as the Allen case had been pending for four years at the time of settlement, and the intervenors knew of the case and had regularly asked the defendant about the status of settlement talks there.

The court did not engage in the "searching inquiry" required for settlement of uncertified class actions. The Ninth Circuit found three signs that the settlement may have been improper:

(1) all of the money that does not go toward claims actually made, the attorneys’ fees and costs and the administration costs reverts to Labor Ready; (2) Labor Ready agreed not to dispute the award of fees to class counsel, as long as that award did not exceed 25% of the common fund; and (3) when the attorneys’ fee award is examined in terms of “economic reality,” the award exceeds the maximum possible amount of class monetary relief by a factor of three.

The court should have examined these factors, built a record to support its final approval decision, and fulfilled its "special obligat[ion] to assure itself that the fees awarded in the agreement were not unreasonably high." The court also should have made express findings regarding the value of the stipulated injunctive relief and plaintiff's counsel's reasonable attorney fee lodestar.

The court also erred in that the deadline for filing class member objections was before counsel submitted its final fee request. The court should have allowed settlement class members to object to the fee award.

The Ninth Circuit expressed no opinion on the settlement's substantive fairness, leaving that issue for the district court on remand.

The opinion is available here. 

Noe v. Superior Court: Independent Contractor Misclassification Penalties Apply to Joint Employers Who Did Not Make Misclassification Decision, but Plaintiffs Have no Private Right of Action

Many appellate decisions do a poor job of laying out the facts, issues and holdings. Noe v. Superior Court (Levy Premium Foodservice Limited Partnership) (6/1/15) ___ Cal.App.4th ___, is an exception:

Anschutz Entertainment Group (AEG) contracted with Levy Premium Foods to manage the food and beverage services at several entertainment venues located in southern California. Levy contracted with Canvas Corporation to provide laborers who sold food and beverages at AEG venues. In 2013, several vendors filed a wage and hour class action against AEG, Levy and Canvas for failure to pay minimum wage and willfully misclassifying them as independent contractors in violation of Labor Code section 226.8. 

AEG and Levy filed motions for summary judgment arguing in part that they were entitled to summary adjudication of plaintiffs’ section 226.8 claim because the undisputed evidence showed Canvas was the entity that had classified the vendors as independent contractors. Although the trial court denied the motions for summary judgment, it agreed that plaintiffs could not pursue a section 226.8 claim against AEG or Levy because neither entity had made the alleged misclassification decision.  

Plaintiffs filed a petition for writ of mandate and we issued an order to show cause. In their return to the writ, AEG and Levy argued for the first time that even if the trial court erred in interpreting section 226.8, we should deny the writ because the statute does not provide a private right of action. We now deny plaintiffs’ petition. We conclude that, contrary to the trial court’s interpretation, section 226.8 is not limited to employers who make the misclassification decision, but also extends to any employer who is aware that a co-employer has willfully misclassified their joint employees and fails to remedy the misclassification. However, we further conclude that section 226.8 cannot be enforced through a direct private action and deny the plaintiffs’ writ on that basis. 

If every court wrote this clearly, nobody would read my blog. Seriously. 

The Court held that the plaintiffs could pursue writ relief because: (1) the ruling on summary adjudication "summarily disposed of a large portion of the case," particularly given the potential value of the 226.8 penalties; (2) review could "obviate a duplicative expenditure of resources"; and (3) the petition presents a "significant issue" of first impression. 

As to the merits, the Court reasoned as follows: 

Section 226.8 makes it unlawful for an employer to "engage in" the act of "voluntarily and knowingly misclassifying [an] individual as an independent contractor." Because "to engage" means to "involve oneself or take part in," an individual or entity can "engage" in misclassification without actually having "committed" that act. "[A] joint employer who knowingly acquiesces in a co-joint employer’s decision to willfully misclassify their joint employees has necessarily 'involved' itself in that misclassification decision." This is consistent with the purpose of the statute, which is to provide a "broad deterrent" against misclassification and comports with the principle that employment statutes should be construed broadly in favor of protecting employees.

An employer may not be held liable under section 226.8 based solely on the acts of a co-employer. To engage in misclassification, and employer must involve itself with or participate in "voluntary and knowing misclassification." A joint employer is not liable for 226.8 penalties as the agent of a "co-joint employer" or under principals of joint and several liability.

Section 226.8 authorizes the Labor Commissioner to enforce the statute “pursuant to Section 98 or in a civil suit," but nothing in section 226.8 itself indicates a legislative intent to create a private right of action for employees themselves. Further, Labor Code section 218, which authorizes employees to sue for wages and penalties that are due to them, does not provide a private right of action under 226.8 because section 226.8 penalties are not payable to the employees.

The defendants did not contend that the plaintiffs could not obtain penalties for violation of section 226.8 under PAGA, and the Court did not address this issue.

The opinion is available here.

DeSaulles v. Community Hospital of the Monterey Peninsula: Supreme Court will Decide Right to Recover Costs after Settlement

In DeSaulles v. Community Hospital of the Monterey Peninsula (2014) 225 Cal.App.4th 1427 (available here), the Court of Appeal held that when an employer pays an employee in settlement, the employee obtains a "net monetary recovery" from the employer and is the prevailing party in the action. As such, where the settlement agreement is silent as to the recovery of costs, the employee is entitled to recover his or her costs as a matter of right. The employer is not entitled to recover its costs in this situation, even though it obtained a judgment denying the plaintiff any relief, which ordinarily would make the defendant the prevailing party.

The California Supreme Court granted review on July 23, 2014. The Court's web site lists the issue presented as follows:

When plaintiff dismissed her action in exchange for the defendant's payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032, subdivision (a)(4), because she was "the party with a net monetary recovery," or was defendant the prevailing party because it was "a defendant in whose favor a dismissal is entered"?

DeSaulles is case number S219236, and the Court's web site for it is here. As always, you can sign up for automatic notices regarding the proceedings on the case web site. Or you can watch this space. I'll post the result once it comes down. 

McLean v. State of California: Supreme Court Will Decide Whether Waiting Time Penalties Apply to Retiring Employees and Whether State Employees May Sue the "State of California"

California Labor Code section 202 provides that an employee's wages become due and payable not later than 72 hours after he or she quits. In McLean v. State of California (2014) 228 Cal.App.4th 1500 (available here) the Court of Appeal held that section 202 applies to retiring employees. The Court also held that McLean, a former deputy attorney general, properly sued the State of California as her "employer" but improperly sued the State Controller's Office.

The California Supreme Court granted review on November 25, 2014. The issues, as stated on the Court's web site, are as follows:

(1) When bringing a putative class action to recover penalties against an "employer" under Labor Code section 203, may a former state employee sue the "State of California" instead of the specific agency for which the employee previously worked? 

(2) Do Labor Code section 202 and 203, which provide a right of action for an employee who "quits" his or her employment, authorize a suit by an employee who retires?

McLean is case number S221554, and the Court's web site for it is here.

Verdugo v. Alliantgroup: Court Rejects Out-of-State Forum Selection and Choice-of-Law Clauses in Employment Agreement

In Verdugo v. Alliantgroup, L.P. (5/28/15) --- Cal.App.4th ---, the plaintiff, Verdugo, worked for the defendant, Alliantgroup. Her employment agreement stated that any dispute would be litigated in Alliantgroup's home state, Texas, and that Texas law would apply. Verdugo filed a putative class action for wage and hour violations, and the court granted Alliantgroup's motion to stay the action, holding that the forum selection clause was valid. The Court of Appeal reversed, holding as follows:

When the claims at issue are based on unwaivable rights created by California statutes, the party seeking to enforce the forum selection clause bears the burden of proving that doing so “will not diminish in any way the substantive rights afforded . . . under California law.”

Indeed, a defendant can meet its burden only by showing the foreign forum provides the same or greater rights than California, or the foreign forum will apply California law on the claims at issue.

Verdugo's claims were based on unwaivable statutory rights, and Alliantgroup failed to show that litigating the claims in Texas would not diminish those rights. The fact that a Texas court may choose to apply California law did not prove that Verdugo's unwaivable statutory rights would not be diminished "in any way."

The opinion is available here.

EEOC v. Abercrombie & Fitch: In Title VII Disparate Treatment Action, Job Applicant Need Not Show that Employer Actually Knew of Need for Accommodation or that Applicant Requested Accommodation

Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. 

EEOC v. Abercrombie & Fitch Stores, Inc. (6/1/15) ___ U.S. ___.

Samantha Elauf, a practicing Muslim who wears a headscarf for religious purposes, applied for a job at Abercrombie & Fitch (A&F). A&F staff assumed that Elauf wore the headscarf for religious purposes, but they did not know for sure and they did not ask. A&F rejected Elauf, believing her wearing a headscarf at work would violate its "Look Policy." 

The EEOC sued on Elauf's behalf, alleging that A&F violated Title VII. The trial court granted summary judgment for Elauf on liability, a jury awarded her damages, and the court entered judgment. The Tenth Circuit reversed, holding that A&F could not be liable because it did not know if Elauf actually needed a religious accommodation. 

The US Supreme Court granted certiorari and reversed the Tenth Circuit, holding that a plaintiff may prevail in a Title VII disparate treatment action without showing that the defendant had actual knowledge of his or her need for a religious accommodation. Instead, an employer may be liable "even if he has no more than an unsubstantiated suspicion that accommodation would be needed" and even if the applicant does not request religious accommodation.

The Court rejected the argument that a claim based on an applicant's religious practice must be raised as a disparate impact claim. "[R]eligious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated."

An employer may be liable even if its policies treat religious practices no less favorably than similar secular practices. 

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Scalia wrote the opinion, with Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joining. Justice Alito wrote a concurring opinion, and Justice Thomas dissented. The opinion is available here. 

Dynamex Operations West v. Superior Court: Supreme Court Will Review Independent Contractor Class Certification Issues

In Dynamex Operations West, Inc. v. Superior Court (Lee) (2014) 230 Cal.App.4th 718 (discussed here) the Court of Appeal held that the IWC Wage Order definition of "employer" -- discussed in Martinez v. Combs (2010) 49 Cal.4th 35 (discussed here) -- applies to claims that fall within the scope of the Wage Order, but the multi-factor test discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 applies to claims that fall outside the scope of the Wage Order. Got it?

The California Supreme Court granted review on January 28, 2015. The issue presented, according to the Court's web site, is as follows:

In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control?

Dynamex is Case No. S222732, and the Court's web site for it is here. 

Higgins-Williams v. Sutter Medical: Employee's Inability to Work under Particular Supervisor Because of Stress Related to Standard Oversight Does Not Constitute Disability under FEHA

In Higgins-Williams v. Sutter Medical Foundation (5/26/15) --- Cal.App.4th ---, the plaintiff, Higgins-Williams, complained to her employer, Sutter, that she suffered stress from interactions with her supervisor and Sutter's HR department. Her physician diagnosed her with adjustment disorder with anxiety, placed her on intermittent leave, and stated that she could return to work without limitation if transferred to a different department. After several months of leave, Sutter advised Higgins-Williams that it would terminate her, unless she provided information as to (1) when she could return to work and (2) whether additional leave as an accommodation would effectuate her return to work. She did not supply the information, and Sutter terminated her.

Higgins-Williams sued, alleging disability discrimination, CFRA, and wrongful termination claims. The trial court granted Sutter's motion for summary judgment on all claims, and the Court of Appeal affirmed, holding as follows:

Higgins-Williams did not suffer from a disability as defined in the FEHA and could not prevail on her FEHA or wrongful termination claims. "An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA."

Higgins-Williams also could not prevail on her CFRA claims because she exhausted her available CFRA and FMLA leave, and Sutter granted her an additional five months of leave thereafter. Higgins-Williams's testimony that she didn't think she could have returned to work but would have tried failed to raise a genuine issue of material fact that Sutter failed to reinstate her following leave.

Finally, Higgins-Williams also could not prevail on her claim that Sutter wrongfully terminated her for asserting her CFRA rights. The evidence showed that Sutter had a legitimate business reason for terminating Higgins-Williams, and Higgins-Williams failed to raise a genuine issue of material fact as to whether that reason was pretextual.

The opinion is available here.