Opinion
3:19-cv-02082-YY
09-10-2021
IAN BULKA, JEFFREY SMITH, JOSHUA HALDEMAN, and DERRICK MCCLEOD, on behalf of themselves and all other similarly situated persons, known and unknown, Plaintiffs, v. MONDELEZ GROUP LLC, dba Mondelez International, Inc., Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiffs Ian Bulka, Jeffrey Smith, Joshua Haldeman, and Derrick McCleod, on behalf of themselves and all other similarly situated persons, bring this putative class action against defendant Mondelez Global LLC, alleging violations of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), the Oregon Family Leave Act, O.R.S. 659A.150, et seq. (“OFLA”), and the Oregon Sick Leave Law (“OSLL”), O.R.S. 653.641. Second Am. Compl. (“SAC”), ECF 33. Plaintiffs seek to represent a class of defendant's current and former employees who were “improperly disciplined for taking leave protected by FMLA, OFLA, OSLL and other protected leave laws.” SAC 3, ECF 33.
This plaintiff's name is spelled “McCleod” and “McLeod” in plaintiffs' documents. These Findings and Recommendations will refer to this plaintiff as McCleod.
Defendant has filed a motion to deny class certification. Def.'s Second Mot. Deny Cert. (“Mot.”), ECF 25. The court has considered the parties' briefing, as well as oral argument. The court also asked the parties to submit supplemental materials to help illustrate the nature of plaintiffs' claims. For the reasons discussed below, defendant's motion to deny certification should be DENIED but with leave to renew at a later time.
I. Class Certification Standard
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. To obtain class certification, a plaintiff “bears the burden of demonstrating that he has met each of the four requirements of Rule 23(a) and at least one of the [three alternative] requirements of Rule 23(b).” Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007). Rule 23(a) provides that the court may certify a class only if: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” FED.R.CIV.P. 23(A)(1)-(4). That is, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation to maintain a class action. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012).
If all four prerequisites of Rule 23(a) are met, plaintiffs must also “satisfy through evidentiary proof” at least one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); Walker v. Life Ins. Co. of the Sw., 953 F.3d 624, 630 (9th Cir. 2020) (holding a plaintiff must also “establish an appropriate ground for maintaining the class action under Rule 23(b)”). Here, plaintiffs invoke Rule 23(b)(3), which permits certification where “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); SAC 9, ECF 33 (alleging “issues involved in this lawsuit present common questions of law and fact, which predominate over any variations that may exist between members of the class”). “[The] predominance inquiry asks the court to make a global determination of whether common questions prevail over individualized ones.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). Individual questions are those where “members of a proposed class will need to present evidence that varies from member to member.” Id. (internal quotation marks omitted) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).
Rule 23 provides that a court “must determine” whether to certify a class action “[a]t an early practicable time after a person sues or is sued as a class representative.” FED.R.CIV.P. 23(c)(1)(A). The Ninth Circuit has made clear that “Rule 23 does not preclude a defendant from bringing a ‘preemptive' motion to deny certification.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 941 (9th Cir. 2009).
The court has discretion to grant or deny class certification. See Vinole, 571 F.3d at 944. District courts must engage in “a ‘rigorous analysis' of each Rule 23(a) factor when determining whether plaintiffs seeking class certification have met the requirements of Rule 23.” Ellis v.Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011) (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982)).
II. Defendant's Motion to Deny Class Certification
In the Second Amended Complaint, plaintiffs claim that they and the class they seek to represent were “improperly disciplined for taking leave” when defendant applied “attendance points” for leave that was protected pursuant to the FMLA, OFLA, OSLL, and other state and federal laws. SAC 3, ECF 33. Plaintiffs allege that defendant imposes attendance-related discipline in the form of “points” or “occurrences” that accrue for alleged violations of the attendance policy, including when “employees miss work or do not accept forced overtime regardless of the reason.” SAC 4, ECF 33. Plaintiffs also allege that defendant “imposes attendance points even when employees take time off work or refuse forced overtime for protected leave.” Id.
Defendant bases its opposition to class certification on the general assertion that “opinions on FMLA class actions nationwide show that they are ill-suited for the predominance element.” Mot. 8, ECF 25. Defendant also argues that “the only exceptions to the consensus that class actions are improper vehicles for FMLA claims involve uniform policies[, ]” Mot. 13, ECF 25, that were “unlawful on their face.” Reply 2, ECF 32 (citing Carrel v. Med Pro Grp., Inc., No. 1:16-CV-130-TLS, 2017 WL 1488359, at *1 (N.D. Ind. Apr. 26, 2017); Hill v. City of New York, 136 F.Supp.3d 304 (E.D.N.Y. 2015), order amended and supplemented, No. 13CV6147PKCJO, 2019 WL 1900503 (E.D.N.Y. Apr. 29, 2019)). The current action, defendant insists, is different from Carrel and Hill because plaintiffs in this case challenge “a policy that is lawful on its face[, ]” and, as such, their claims would require the court to “engage in a fact- intensive inquiry to look at deviations from the operation of the policy.” Def.'s Reply Pls.' Resp. 2, ECF 32.
To show that it maintains a lawful attendance policy and does not deduct points for FMLA and other protected leave, defendant cites the attendance policy from its Portland bakery that provides:
Any absence from work during scheduled work hours will be considered an occurrence except for the following reasons: . . . 2) Family Leave - As provided in both the Oregon and Federal Family Leave Act.Norwood Decl., Ex. A, ECF 28-1.
Defendant, however, misconstrues the caselaw. The court in Carrel did not find the challenged policies facially invalid and, in fact, certified the FMLA class after finding that the “common question boils down to whether or not the Defendant's PTO policy violated the FMLA.” 2017 WL 1488359, at *1 (emphasis added). Similarly, the court in Hill found that common questions existed “as to whether the City Defendants' policy and practice . . . interfere[ed] with . . . [plaintiffs'] FMLA rights[.]” 136 F.Supp.3d at 354 (emphasis added). These cases, therefore, do not stand for the proposition that FMLA class certification is only appropriate where plaintiffs challenge facially unlawful policies, and do not demonstrate that plaintiffs cannot establish commonality based on their FMLA claims.
Defendant also argues that it operates many facilities across the U.S.-“8 manufacturing plants, 46 Direct to Store Delivery branches, and 67 cross docks and drop yards”-that “do not all use the same third-party administrator for protected leave, or the same timekeeping system.” Beitzel Decl. ¶ 3-4, ECF 26. In pointing to its own policies and procedures, defendant contends that “numerous individual issues are inherent in claims regarding protected leave, ” including questions about each class member's eligibility for leave, underlying health conditions, notice of leave, and more. Mot. 3, 7, ECF 25. According to defendant, this “array of attendance policies and individualized facts” preclude findings of commonality, typicality, and predominance and show that plaintiffs' claims are “incompatible” with Rule 23. Mot. 2, 14, ECF 25.
Plaintiffs counter that “[d]efendant attempts to turn this case into something it is not: an evaluation of whether each employee qualified to take protective leave.” Resp. 3, ECF 31. In actuality, plaintiffs explain, “the members of the class are individuals that defendant already determined were qualified for leave and were disciplined for taking leave that defendant determined was protected leave.” Id. Plaintiffs also oppose the timing of defendant's motion, noting that “any standard of fairness would demand that plaintiffs be afforded the opportunity to conduct discovery.” Resp. 2, ECF 31.
The parties' arguments make it clear that “[r]esolution of defendant's motion to deny certification should be deferred until discovery has been conducted in this case.” Resp. 3, ECF 31. First, it is well established that district courts have “‘broad discretion to control the class certification process[.]'” Taylor v. Shutterfly, Inc., No. 18-CV-00266-BLF, 2020 WL 1307043, at *5 (N.D. Cal. Mar. 19, 2020) (quoting Vinole, 571 F.3d at 942). Further, while “a defendant may file a motion to deny class certification before the close of fact discovery and before the pretrial motion deadline, ” id. (citation omitted), “such a motion is disfavored and may be denied as premature.” Id. (citing Amey v. Cinemark USA Inc, No. 13-CV05669WHO, 2014 WL 4417717, at *1 (N.D. Cal. Sept. 5, 2014)). The Ninth Circuit has also commented that “[t]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action [is] maintainable.” Vinole, 571 F.3d at 942 (internal quotation marks omitted).
Here, it is not difficult to find defendant's motion to deny certification premature. The parties have produced very few documents in discovery, and the records they have produced do not resolve whether plaintiffs will be able to satisfy the requirements of Rule 23. Further, the parties need sufficient time to comply with the court's recent discovery order that bifurcates discovery and gives both parties the opportunity to develop the record. See ECF 44. Indeed, “without the benefit of a developed record, ” it is not possible to conclude that plaintiffs will be unable to meet their burden under Rule 23. Gardner v. StarKist Co., No. 19-CV-02561-WHO, 2020 WL 6136091, at *2 (N.D. Cal. Oct. 19, 2020) (denying motion to deny class certification and finding “[m]otions to deny class certification, particularly with little to no discovery, are granted in rare circumstances”); see also Bentley v. United of Omaha Life Ins. Co., No. CV157870DMGAJWX, 2018 WL 3357455, at *2 (C.D. Cal. Jan. 4, 2018) (finding “[i]t would be premature for the Court to deny class certification before Plaintiff has had an opportunity to complete discovery.”); In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F.Supp.2d 609, 615 (N.D. Cal. 2007) (noting that “dismissal of class allegations at the pleading stage should be done rarely and . . . the better course is to deny such a motion because the shape and form of a class action evolves only through the process of discovery.”). In sum, “plaintiffs must be given a fair opportunity to gather evidence to support their theories.” Amey v. Cinemark USA Inc, No. 13-CV05669WHO, 2014 WL 4417717, at *4 (N.D. Cal. Sept. 5, 2014); cf., Johnson v. Q.E.D. Envtl. Sys. Inc., No 16-CV-01454-WHO, 2017 WL 1685099, at *6 (N.D. Cal. May 3, 2017) (granting motion to deny certification where “[f]act discovery is closed and the evidence is clear that plaintiffs cannot meet the numerosity requirement for Rule 23”).
RECOMMENDATIONS
Defendant's motion to deny certification (ECF 25) should be DENIED without prejudice to its ability to raise the arguments presented in this motion at a later stage of the proceedings.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, August 23, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.