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.