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Dunbar v. Albertson’s-Class Action Defense Cases: Certification Of Employment Class Action Seeking Overtime Pay On Theory That Employer Misclassified Employees As Exempt Properly Denied California Court Holds

California Trial Court Properly Engaged in “Weighing Process” to Determine Commonality of Class Action Claims and Correctly Refused to Certify Class Action Because Individual Issues would Predominate

Plaintiff, a grocery manager at Albertson’s, filed a putative class action seeking overtime compensation on the theory that Albertson’s erroneously classified him as an exempt executive employee. Defense attorneys objected to certification of the class action on the grounds that individualized issues of liability and damages would predominate. Dunbar v. Albertson’s, Inc., 141 Cal.App.4th 1422, 1424-25 (Cal.App. 2006). The trial court agreed with the defense, and refused to certify the lawsuit as a class action. The appellate court affirmed.

Plaintiff’s motion for class certification consisted of more than 60 virtually identical declarations of grocery managers stating that the great majority of their work time was spent in the allegedly non-managerial tasks of walking the floor to verify that inventory was properly stocked, stocking shelves, organizing the stock room, unloading new merchandise, responding to customer questions, cashiering, putting price tags on items, checking inventory, and doing routine paperwork. Dunbar, at 1424-25. In opposition, defense attorneys submitted excerpts of deposition testimony from plaintiff’s declarants, and filed 79 declarations of grocery managers – many of whom had executed declarations for the plaintiff – that described “in varied terms their allegedly executive work at different stores.” Id., at 1425. “This evidence was accompanied by a chart outlining how the deposition testimony and counter-declarations differed from the declarations plaintiff submitted. Defendant also presented statistics on the varying amounts of time plaintiff’s declarants spent working cash registers each week during the period from July 2004 through April 2005.” Id.

Plaintiff’s class action was premised on the theory that common issues of whether the grocery managers’ different tasks were exempt or non-exempt would predominate; the common question was whether defendant properly classified grocery managers as exempt. Defense attorneys argued that given the variation in the work performed by different grocery managers, individual issues of liability and damages would predominate as the court would have to inquire into the tasks each manager performed and the length of time they spent on each task.

In considering the motion, the trial court noted the large volume of evidence submitted and remarked that this case “presented a good illustration of the weighing process that the Court necessarily must undertake in determining the commonality principles that apply in class certification.” Dunbar, at 1425. Ultimately, the trial court issued a 14-page order that denied class certification on essentially two grounds. First, the court agreed with defense attorneys that common issues did not predominate and that “the different factual circumstances of the absent class members in this case will require their active participation in the resolution of their claims.” Id., at 1426. Second, the court concluded that a class action was not the superior means of resolving the litigation because class members were likely to prosecute individual claims, class-wide relief was not required to redress the alleged wrong, and alternative procedures for available for resolving the dispute. Id.

In examining the ruling, the Court of Appeal quoted extensively from the trial court’s order and the five reasons set forth therein for denying class action status to plaintiff’s suit. With respect to the court’s finding that common issues did not predominate, the appellate court quoted from the lower court’s order at pages 1427 to 1430 as follows:

First, although Defendant has made a single policy decision to classify hundreds of GMs as exempt, that single policy decision may be improper as to some putative class members but proper as to others. . . . Therefore, although the evidence of a standardized or uniform policy or practice can support class certification it does not compel class certification. [¶] . . . [¶]

In this case, the Court cannot determine whether Defendant’s policy of designating general managers as exempt is unlawful in the abstract. If the Court found that the policies were appropriate as applied to [70%] of the general managers and inappropriate with respect to the remaining [30%], that finding would not permit the conclusion that the policies are unlawful. The hypothetical finding would indicate the policies are applied to too many employees and lead the Court to visit the issue of ascertaining which employees are in the [70%] that should be in the class and which are in the [30%] that should not be in the class.

Second, as a general proposition, in determining whether an employee is exempt or non-exempt, the Court should engage in a fact specific inquiry rather than simply review the job description. . . . Therefore, the Court focuses on the evidence concerning the actual experiences of the class members rather than on the formal job descriptions and policies.

Third, the Court has considered the only contemporaneous time records that bear on the commonality issue–the records concerning when GMs were operating cash registers…. … [¶] The information * * * suggests that the work of [GMs] varied significantly on a week to week basis. . . .

Fourth, the Court has reviewed the declarations and depositions at some length. This is a fact intensive review. . . . This record requires the Court to weigh the evidence. [¶] In weighing the evidence, the Court is not evaluating whether the claims asserted are legally or factually meritorious. . . . The Court is evaluating only whether common issues predominate. . . .

The Court finds that the deposition testimony of many witnesses suggests that the work of many GMs varied significantly. The declarations submitted by Defendant demonstrate similar variety in the work performed by different GMs. These depositions and declarations are credible and suggest that the work performed by the GMs varied significantly from store to store and week to week.

Fifth, the Court has considered the argument of Plaintiff that all the GMs performed the same tasks and that the determination of whether a task is managerial will be a common issue. It is true that there is a common issue whether stocking shelves and running cash registers are managerial tasks, but that is not the central focus of the commonality inquiry. If that were the inquiry, then the class could include employees at Albertson’s, Safeway, Andronico’s and every other grocery chain (and perhaps every retailer). The Court is focusing on whether the work performed by any one GM is so similar to the work performed by any other GM that the Court can reasonably extrapolate findings from the named plaintiff to the absent class members.

The court has considered that a class can be certified where each class member must establish the amount of his or her damages. This is not such a situation, because here each class member would need to establish entitlement to damages as well as the amount of damages. (Citations omitted.)

The Court of Appeal, obviously impressed by the detailed and thoughtful analysis of the well-respected trial judge, affirmed. It rejected plaintiff’s claim that the trial court relied on “improper criteria” in denying class certification. Plaintiff argued that the lower court refused to certify a class action because of “individual issues of liability”; the appellate court explained, however, that this was “only one factor, not the controlling factor, in the court’s decision.” Dunbar, at 1431. “The most important consideration, in the court’s view, was the significant variation in the grocery managers’ work from store to store and week to week.” Id. Thus, a lawsuit on behalf of all grocery managers would require 900 individual inquiries because of the significant differences in work performed. The Court held that this aspect of the court’s ruling was on “solid footing” because it focused on the “nature” of the individual liability issue, not merely their “existence.” Id. (italics by court). Moreover, “the record refutes plaintiff’s claim that the court failed to compare the relative weights of the common and individual issues.” Id., at 1433. The Court of Appeal concluded that the trial court did not apply improper criteria in considering the motion for class certification, and affirmed the order.

NOTE: In considering the testimony before it, the trial court stated, “The Court gives the greatest weight to deposition testimony because it reflects a witness’s actual testimony on cross examination and (unlike declarations and interrogatory responses) cannot be scripted by counsel.” Dunbar, at 1429.

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