Opinion
Case No. 5:12-cv-004344-PSG
02-24-2015
BALJINDER RAI, et al., Plaintiffs, v. SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, et al., Defendants.
ORDER GRANTING MOTION FOR CLASS CERTIFICATION
(Re: Docket No. 143)
Each weekday, 139,582 people ride the Santa Clara Valley Transportation Authority's bus and light rail train system. Richard Rosa and Walter Silveira are system operators who allege that from August 17, 2009 onward VTA subjected them to a common and unlawful compensation scheme. Plaintiffs say that VTA required them to "work off-the-clock without compensation" because VTA did not compensate them for "all hours worked" performing compensable work activities such as traveling to their routes and meeting with their supervisors. Plaintiffs move for certification of a class of operators under-compensated during the relevant time period.
See Santa Clara Valley Transportation Authority System Summary, http://www.vta.org/transparency/performance-indicators/system-summary (139,582 average weekday boarding riders for the financial year to date 2015 first quarter).
By stipulation of the parties, Silveira substituted for former Plaintiff Baljinder Rai. See Docket No. 142.
See Docket No. 36 at 12-13.
See Docket No. 143. Plaintiffs seek class certification for the Second and Third Causes of Action of their Fourth Amended Complaint, which allege failure to pay all hours worked. See id. at 12-13; see also Docket No. 143 at 1. Plaintiffs also make other claims not at issue here.
Whatever their ultimate success on the merits, the substantial record compiled by the parties shows that Plaintiffs meet the requirements for class certification. The court GRANTS Plaintiffs' motion.
The court may take judicial notice of a "fact that is not subject to reasonable dispute because it is generally known" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). If the fact is not in dispute and may be verified by resort to the public record, the court takes judicial notice as requested. A court may take judicial notice of laws, city ordinances and opinion letters. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006); Mendoza v. Home Depot, U.S.A., Inc., Case No. 09-05843-SJO(JCx), 2010 WL 424679, at *3 (C.D. Cal. Jan. 21, 2010) (Industrial Wage Orders and California Division of Labor Standards Enforcement Opinion Letters "are properly subject to judicial notice"). Plaintiffs request that the court take judicial notice of (1) the California Industrial Welfare Commission Wage Order 9-2001, codified at 8 Cal. Code Regs. § 11090 (Docket No. 144, Ex. 1); (2) the City of San Jose Minimum Wage Ordinance (Docket No. 144, Ex. 2) and (3) a California Division of Labor Standards Enforcement Opinion Letter of January 29, 2002 (Docket No. 144, Ex. 3). Because none is subject to a reasonable dispute, the court takes notice as requested. Plaintiffs also object to the tardiness of VTA's opposition brief, see Docket No. 167 at 2, and further complain that the declarations of Anita Geleynse, Eric Rosenberg and David Terrazas are not signed and lack an attestation by the filer as Civ. L.R. 5-1(i)(3) requires. See id; see also Docket Nos. 154-1, 154-2, 155. Plaintiffs assert that these declarations—along with the declaration of Joseph P. Ryan—are defective because they purport to be "under penalty of perjury under the laws of the State of California," not under federal law. See Docket No. 167 at 2 (citing Mejia v. City of San Bernardino, Case No. EDCV-11-00452-VAP(DTBx), 2012 WL 1079341, at *2 (C.D. Cal. Mar. 30, 2012)); see also Docket No. 154-3. The court does not condone late filings or filings of defective, unsigned declarations. But as explained below, class certification is proper, even considering these declarations and VTA's opposition brief. For its part, VTA objects that Plaintiffs "filed a voluminous motion just before Thanksgiving" without giving VTA time to discuss a discovery plan with Plaintiffs. See Docket No. 154 at 4. Plaintiffs filed their motion in compliance with the stipulated, court-ordered schedule and gave VTA an extension of time to file its opposition. See Docket Nos. 132, 143, 153. This was sufficient.
I.
"The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" To satisfy class certification requirements, class members' claims must be capable of satisfaction in "one stroke." To satisfy the four threshold requirements of Fed. R. Civ. P. 23(a), (1) the class must be "so numerous that joinder of all members is impracticable" (numerosity); (2) there must be "questions of law or fact common to the class" (commonality); (3) "the claims or defenses of the representative parties" must be "typical of the claims or defenses of the class" (typicality); and (4) the named plaintiffs must "fairly and adequately protect the interests of the class" (adequacy). Plaintiffs seeking class certification must also satisfy the requirements of Rule 23(b), subdivisions 1, 2 or 3, which define three different types of classes.
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-1 (1979)).
Id. at 2551.
In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting Fed. R. Civ. P. 23(a)(1)-(4)); see also Leyva v. Medline Indus., Inc., 716 F.3d 510, 512 (9th Cir. 2013).
See Fed. R. Civ. P. 23(a)-(b); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998); Leyva, 716 F.3d at 512.
Here, Plaintiffs seek certification pursuant to Rule 23(b)(3), the predominance standard. To certify a class under Rule 23(b)(3), the party seeking class certification must establish that both that (1) "questions of law or fact common to class members predominate over any questions affecting only individual members" and that (2) a class action would be "superior to other available methods for fairly and efficiently adjudicating the controversy." "The shared legal or factual issues must be of sufficient importance to the case that the Court is convinced that the most efficient, fair, and sensible method of adjudication is through a class action." As a result, the predominance inquiry examines "whether proposed classes are sufficiently cohesive to warrant adjudication by representation."
See Docket No. 143 at 18.
Stitt v. San Francisco Mun. Transp. Agency, Case No. 12-cv-3704, 2014 WL 1760623 (N.D. Cal. May 2, 2014) (citing Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 10-C § 10:274).
Hanlon, 150 F.3d at 1022 (internal citations omitted).
In evaluating whether a party has met the requirements of Rule 23, "Rule 23 does not set forth a mere pleading standard." "A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." This is a "rigorous analysis" that must "'entail some overlap with the merits of the plaintiff's underlying claim.'"
Wal-Mart, 131 S. Ct. at 2551.
Id. (emphasis in original).
See id.; see also Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542-43 (9th Cir. 2013).
See Wal-Mart, 131 S.Ct. at 2551; In re Google Inc. Gmail Litig., Case No. 5:13-md-02430-LHK, 2014 WL 1102660, at *11 (N.D. Cal. Mar.18, 2014); General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982) ("[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable.").
Over three hundred and eighty bus and train operators perform public transit services for VTA each day. Each of these operators is assigned to one of four divisions. VTA oversees and operates all divisions. Since 2008, VTA and Amalgamated Transit Union, Local 265, which represents all bus and train operators at VTA, have been parties to collective bargaining agreements that set forth operators' wages, hours of work and working conditions.
See Docket No. 145-2, Tidrick Decl., Ex. G, Cuff Depo. at 26:8-27:10.
See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 10:13-12:1.
See id. at 10:20-11:3, 12:9-13, 18:20-25.
See Docket No. 155, Terrazas Decl. at ¶¶ 3-11, see also Docket Nos. 155-162, Terrazas Decl., Ex. 1-2.
Throughout the proposed class period, VTA has used Trapeze, a computer software suite, to design schedules for its bus and light rail operators. VTA uses Trapeze to create a "Synopsis of Runs" that identifies each operator's daily assignment. The Synopsis of Runs enables VTA to calculate a predetermined daily pay amount for each operator. To determine this amount, VTA calculates the operator's total "straight time," which is a predetermined amount of compensable time for various categories of time associated with the operator's run. In some situations, straight time includes additional time that operators are paid in order to meet full time operators' guarantee of eight hours of daily pay and "elapsed time," which is a premium for work time that exceeds ten hours and thirty minutes. VTA adds straight time hours to overtime hours and then multiplies this figure by the applicable hourly rates to calculate the operator's total daily pay.
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 9:7-10:25, 28:3-14, 29:5-19; see also Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 18:6-25.
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 31:7-32:4; Docket Nos. 145-2, 145-3, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 1.
See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 79:23-80:24; Docket No. 145-7, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 5 at Section 11, pages 5 ("Synopsis of Runs: Explanation of each Column as Follows" defining the column labeled "STRT TIME" as "Straight Time. A combination of total platform, travel time, allowed time, report time and elapsed time"); see also Docket Nos. 145-2, 145-3, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 1.
See Docket No. 145-7, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 5 at Section 11, pages 5.
See id. ("Synopsis of Runs: Explanation of each Column as Follows" defining "TOTAL PAY" as "[t]he number of hours being paid at straight time rate for STRAIGHT TIME and OVER TIME (Total Run Pay). Multiply this time by the hourly rate to figure total pay for the day"); see also Docket Nos. 145-2, 145-3, Stanislaw Depo. Vol. 1, Ex. 1.
Plaintiffs allege that VTA's compensation system does not pay operators for "all (1) split-shift travel time, (2) turn-in time, (3) bulletin time, (4) meeting time, (5) pre-departure time and (6) all time actually spent driving." In the Second and Third Causes of their Fourth Amended Complaint, Plaintiffs allege that by not "compensat[ing] operators for all hours worked," VTA has violated California Industrial Wage Order No. 9, California Labor Code § 1194 and San Jose Municipal Code Chapter 4.100.
Docket No. 143 at 5.
See Docket No. 36 at 12-13.
Plaintiffs now request that the court certify a class with request to these causes of action of "[a]ll individuals who are currently employed, or formerly have been employed, by the Santa Clara Valley Transportation Authority as a bus or train operator at any time on or after August 17, 2009." Plaintiffs also seek authorization to send to all class members the class notice attached to the Declaration of Steven G. Tidrick, appointment of Plaintiffs Richard Rosa and Walter Silveira as representatives of the class and appointment of the Tidrick Law Firm as class counsel.
Docket No. 143 at 1. Plaintiffs also request that the class exclude "anyone employed by counsel for Plaintiffs in this action, and any Judge to whom this action is assigned and his or her immediate family members." See id. at 1.
See id.
II.
This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).
III.
At issue is whether Plaintiffs' proposed class should be certified. Because Plaintiffs have met the requirements of both Rule 23(a) and Rule 23(b)(3), the court certifies the proposed class.
First , Plaintiffs have standing to pursue their claims. "[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." Put another way, if "the individual plaintiff lacks standing, the court need never reach the class action issue."
See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003).
See id. (internal citations omitted); see also Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) ("In a class action, standing is satisfied if at least one named plaintiff meets the requirements.")
VTA suggests that Plaintiffs lack standing to seek compensation for time allegedly worked in excess of eight hours because they are guaranteed eight hours per day under their collective bargaining agreements. While Section 510 of the California Labor Code and Wage Order No. 9 provide that employers must pay overtime to employees who work in excess of certain time periods, neither Section 510 nor Wage Order No. 9 applies to employees like Plaintiffs covered by a "valid collective bargaining agreement" that expressly provides for "premium wage rates for all overtime hours worked" and a "regular hourly rate of pay...of not less than 30 percent more than the state minimum wage." But, as Plaintiffs point out, no state court has ruled that the time the operators receive under a guarantee of eight hours of paid work per shift may "offset any time spent performing tasks that are not built into the schedules."
See Docket No. 154 at 7-8.
See Cal. Lab. Code §§ 510(a)(2), 514; 8 C.C.R. § 11090(3)(H); see also Docket No. 154 at 8; see also Docket No. 155, Terrazas Decl. at ¶¶ 8, 10.
See Docket No. 167 at 7; cf. Docket No. 144, Ex. 3 at 11 ("Averaging of all wages paid under a CBA or other contract, within a particular pay period, in order to determine whether the employer complied with its minimum wage obligations is not permitted under these circumstances, for to do so would result in the employer paying the employees less than the contract rate for those activities which the CBA or contract requires payment of a specified amount equal to or greater than the minimum wage, in violation of Labor Code sections 221-223.").
VTA's assertion that Plaintiffs' failure to use the procedures provided in the CBAs to grieve their claims is "a jurisdictional bar to pursuing those claims" in this court similarly lacks merit. As with VTA's claim that Plaintiffs' overtime claims are barred, no court has ruled that a lack of exhaustion bars Plaintiffs' claims, especially where, as here, Plaintiffs assert that they "can prove that their claims are not subject to mandatory arbitration." VTA's challenges to Plaintiffs' claims thus do not rise to the level necessary to "establish" that Plaintiffs have no viable claims.
See Docket No. 154 at 9-10. VTA asserts that a party to a collective bargain agreement which "provides grievance and arbitration machinery for the settlement of disputes" within the scope of such agreement "must exhaust the internal remedies" before seeking redress in court "in the absence of facts excusing such exhaustion." See Docket No. 154 at 9 (citing Johnson v. Hydraulic Research & Mfg. Co., 70 Cal. App. 3d 675, 679 (1977)); see also Docket No. 155, Terrazas Decl., Ex. 1, Part A, Section 19 (providing a grievance procedure for disputes regarding the CBA); Docket No. 159, Terrazas Decl., Ex. 2, Part A, Section 19 (same).
See Docket No. 167 at 8; cf. Lierboe, 350 F.3d at 1023 (noting that state supreme court had "established" that plaintiff's claim was not viable under state law).
See id.
Second , Plaintiffs meet the numerosity requirement. Rule 23(a)(1) requires that a class be "so numerous that joinder of all members is impracticable." The Rule creates greater access to judicial relief, particularly for those persons with claims that would be "uneconomical to litigate individually." A class of forty or more members "raises a presumption of impracticability of joinder based on numbers alone."
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985); 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1762 (3d ed. 2005).
1 William B. Rubenstein, Newberg on Class Actions § 3:12, (5th ed. 2011); see also Rannis v. Recchia, 380 Fed. Appx 646, 651 (9th Cir. 2010).
Plaintiffs have shown, and VTA concedes, that Plaintiffs meet the numerosity requirement. Plaintiffs have presented evidence that VTA employed at least 1,083 people as operators during the proposed class period. Given the number of class members, joinder would be impracticable.
See Docket No. 154 at 4 ("VTA does not question the 'numerosity' criterion.").
See Docket No. 145, Tidrick Decl. at ¶ 3 ("VTA produced to Plaintiffs' counsel contact information for a total of 1,083 Operators...taking into account additional individuals that VTA has hired as Operators since that time, the proposed class size is at least 1,083 people.").
Under the ascertainability doctrine, the class must be sufficiently definite so that it is feasible for the court to determine membership by reference to objective criteria. See Williams v. Oberon Media, Inc., 468 Fed. Appx. 768, 770 (9th Cir. 2012) (class motion was properly denied because the proposed members are not "precise, objective or presently ascertainable"). VTA does not dispute that this requirement is met, and Plaintiffs have presented sufficient evidence that VTA maintains records from which the class members can be identified. See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 21:2-24; Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 70:18-23; Docket No. 150, Drogin Decl. at ¶¶ 4, 17-18; Docket No. 145, Tidrick Decl. at ¶ 3.
Third , Plaintiffs have met the commonality requirement. Commonality is met when there are "questions of law or fact common to the class." "Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury," and not merely violations of "the same provision of law." The class members' claims must "depend upon a common contention" such "that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." "Put another way, the key inquiry is not whether the plaintiffs have raised common questions, 'even in droves,' but rather, whether class treatment will 'generate common answers apt to drive the resolution of the litigation.'"
Wal-Mart, 131 S.Ct. at 2551 (internal citations omitted).
Id.; see also Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014).
Abdullah v. U.S. Sec. Ass., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Wal-Mart, 131 S.Ct. at 2551 (emphasis in original)).
Dissimilarities between class members must be considered in determining whether a common question will generate a common answer because dissimilarities within the proposed class can "impede the generation of common answers." Thus, commonality must be determined based on an understanding of the nature and merit of the underlying claims to the extent such analysis is "relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Plaintiffs need not show, however, that "every question in the case, or even a preponderance of questions, is capable of class-wide resolution. So long as there is 'even a single common question,' a would-be class can satisfy the commonality requirement of Rule 23(a)(2)." Thus, "[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists."
Wal-Mart, 131 S.Ct. at 2551 (internal citations omitted).
Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S.Ct. 1184, 1194-95 (2013) (internal citations omitted); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) ("[A] district court must consider the merits [of plaintiffs' claims] if they overlap with the Rule 23(a) requirements.") (emphasis in original).
Wang, 737 F.3d at 544 (quoting Wal-Mart, 131 S.Ct. at 2556).
Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir.2012) (internal citations omitted).
In Wal-Mart, the Supreme Court held the plaintiffs had not established commonality when plaintiffs had not alleged an "express corporate policy" of discrimination and the challenged employment decisions were "generally committed to local managers' broad discretion." The Supreme Court noted that there is a "conceptual gap" between an individual's claim of injury and "the existence of a class of persons who have suffered the same injury." The plaintiffs could have bridged this gap by offering "significant proof that [their] employer operated under a general policy of discrimination." However, because the plaintiffs provided "no convincing proof of a companywide" policy of discrimination, the Supreme Court concluded that they had "not established the existence of any common question."
Wal-Mart, 131 S.Ct. at 2547-48.
Id. at 2553 (internal citations omitted).
Id. at 2553 (internal citations omitted).
Id. at 2556-57.
Plaintiffs allege that VTA maintains common policies, procedures and practices relating to the compensation of all operators with respect to each of the six categories of time for which they seek compensation. The court considers each in turn.
To begin, Plaintiffs have presented substantial evidence that VTA maintains a policy not to pay operators for "split-shift travel time." VTA requires operators to sometimes work "split runs" which consist of two parts which are separated by some amount of time. The first part of these "split runs" ends at a location that is geographically distant from the beginning of the other part of the split run. As a result, an operator incurs split-shift travel time when he or she travels from the end of the first part of the split run to the beginning of the second split run. Even though VTA's route and scheduling decisions cause operators to engage in this travel, VTA pays operators for the travel time based on "scheduled running time of the service available at that time of day," a computation that, except for light rail operators, as a "general rule" does not include "time for waiting or walking."
See Docket No. 143 at 5-6.
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 58:1-59:9, 67:17-68:17; see also Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶¶ 9-12 (describing split-shift travel time); see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. (declarations of other operators describing split-shift travel time).
Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 9; see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls.
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 58:2-23; Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 9; see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls.
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 59:3-60:6, 67:17-68:17; Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 10 ("This 'split-shift travel' is the result of Defendant's route and scheduling decisions and is for the convenience and benefit of Defendant only."); Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. (similar assertions).
See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 55:5-56:9 (payment for "travel time" as a "general rule" does not include time spent "walking or waiting" except that light rail is "paid for the waiting time").
Plaintiffs also have presented substantial evidence that VTA has policies not to compensate operators for "pre-departure time" and "turn-in time." Operators incur pre-departure time because VTA has developed policies that result in operators sometimes arriving early to locations at which they relieve other operators from their routes. Operators incur turn-in time because VTA requires operators to incur turn-in time performing various tasks after they pull into the divisions at which some shifts end.
See Docket No. 143 at 6-9.
Operators sometimes relieve other operators at locations on routes that are geographically distant from their current locations. See Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 28 ("I have had to travel from either a relief point or my division to relieve another Operator."); see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. VTA recommends that operators take the bus or train to the relief location that is two buses or trains ahead of the bus or train that would get the operator to the relief point at the exact time of or just before the relief that the operator is making. See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 77:2-78:2; Docket No. 145-2, Tidrick Decl., Ex. C, Marshall Decl. at ¶¶ 6-8. Operators are "subject to discipline" if they do not arrive at the relief point within a certain timeframe, but "excused from such discipline" if they followed VTA's recommendation regarding which bus or train to take to the relief location. See Docket No. 145-2, Tidrick Decl., Ex. E, Stanislaw Depo. Vol. 2 at 100:1-102:7. VTA acknowledges that following its recommendation would "typically" result in operators arriving at relief locations early. See Docket No. 145-2, Tidrick Decl., Ex. E, Stanislaw Depo. Vol. 2 at 102:8-12; see also Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 77:21-78:2; Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 29 (describing how VTA's instructions "routinely" result in early arrival to operator's relief location); see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. (describing similar early arrivals).
Some operators' shifts end at relief points and others end at divisions. See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 32:16-20. VTA maintains policies and procedures that require operators to perform various tasks after pulling into divisions. See id. at 26:10-28:17, 32:21-33:8; Docket No. 145-8, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 6, Rule 4.25 ("Responsibilities After Pull-In"), Docket No. 146, Ex. 7, Rule 4.25 ("Responsibilities After Pull-In"), Docket No. 146-2, Ex. 8, Rule 12.12.13 ("Place the defect card on the clipboard attached to the shop office door."); Docket No. 145-2, Tidrick Decl., Ex. E, Stanislaw Depo. Vol. 2 at 102:17-103:7; Docket No. 146-7, Stanislaw Depo. Vol. 2, Ex. 26, Rule 4.25 ("Responsibilities After Pull-In"); Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 13 (describing how VTA requires operator to "turn in various documents (for example, defect cards, run paddles, operator comment forms, lost property tags, and suspect description forms) to the dispatcher at the division at the end of my day's assignment and/or at the end of a route that requires me to return my vehicle back to the division"); see also Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. (describing time spent on similar turn-in activities).
VTA employee Eric Rosenberg asserts that turn-in time is "obsolete" and that the time that operators spend pulling into the division, parking the buses and walking into the division to turn in their pouches is "built into the run pay" and was "measured at each Division." However, Plaintiffs have presented evidence that VTA does not include both pre-departure time and turn-in time in its "Synopsis of Runs" which it uses to calculate its predetermined payment amounts for operators. Multiple operators also state that VTA has not paid them for all turn-in time. Accordingly, while the evidence Rosenberg presents suggests that operators sometimes are paid for turn-in time, it is not sufficient to rebut Plaintiffs' substantial evidence that VTA has policies and practices that result in operators not being compensated for all pre-departure and turn-in time.
See Docket No. 154-2, Rosenberg Decl. at ¶¶ 8-9.
See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 79:23-80:24, Docket No. 145-7, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 5 at Section 11, pages 4-5 (showing that "straight time" consists of "a combination of total platform, travel time, allowed time, report time and elapsed time" and stating that "Turn In Time" is "[n]ot used at this time"), Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1, Ex 1 (indicating no time allocation in "Turn Time" column); Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 55:5-56:9 (payment for "travel time" as a "general rule" does not include time spent walking or waiting except that light rail operators are paid for waiting time).
Docket No. 145-1 Tidrick Decl., Ex. B, Silveira Decl. at ¶¶ 17, 21 (stating that VTA has not compensated operator for all pre-departure and turn-in time); Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. Plaintiffs also present evidence that operators are not paid for turn-in time because they are "off-the-clock" when they arrive at the gate of the division. See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 25:9-12 ("[P]ull-in" is the "time when the operator is scheduled to pull into the division gate"); Docket No. 145-3, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex. 2 ("Pull In 11:27p" for "Run[] 2128" indicating that the time the vehicle pulls into division is 11:27 pm); Docket No. 145-2, Tidrick Decl., Stanislaw Depo. Vol. 1, Ex.1 at 3 ("Time Off 11:27p" indicating that scheduled ending time of run 2128 is 11:27 pm).
Similarly, Plaintiffs have presented substantial evidence that VTA has common policies and practices not to compensate operators for bulletin time and meeting time. VTA requires operators to spend "bulletin time" checking bulletin boards at their divisions for bulletins and notifications, reviewing any items posted and meeting with superiors if the operator needs clarification or instructions regarding the posted materials. VTA also requires operators to spend "meeting time" with their supervisors to talk about "items related to [operators'] job duties and other business" of VTA. Despite these requirements, Plaintiffs have presented evidence that VTA does not pay operators for all time spent on bulletin time and all time spent in meetings regarding payroll correction forms.
See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Vol. 1 at 68:8-22-69:5, Docket No. 145-7, Ex. 6 at pg III-IV, Docket No. 146 Ex. 7, at pg III-IV, Docket No. 146-1, Ex. 8, Rule 1.3; see also Docket No. 146-7, Tidrick Decl., Ex. E, Stanislaw Depo. Vol. 2, Ex. 26, 2014 Coach Operator Rulebook at pg. III-IV.
See Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶¶ 34-39; see also Docket Nos. 145-1, 145-2, Tidrick Decl. Ex. B, Operators' Decls. (describing time spent on similar meeting-related activities).
Plaintiffs cite to evidence showing that VTA "has maintained a policy and practice of not including Bulletin Time in the Synopsis of Runs that it creates using Trapeze, and not paying for that time." See Docket No. 143 at 9 (citing Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 79:23-80:24; Docket No. 145-7, Ex. 5 at Section 11, page 5 (showing that straight time consists of "total platform, travel time, allowed time, report time and elapsed time")). VTA also has a policy not to compensate operators for time meeting regarding payroll correction forms. See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. Vol. 1 at 60:1-3 (agreeing that operators are not "paid for the time meeting with the timekeeper about...paycheck investigation request[s]").
With respect to Plaintiffs' claims for additional driving time, Plaintiffs also have provided substantial evidence showing that VTA has a common policy of compensating operators for driving time based on a predetermined schedule rather than the actual time the operators spend driving. Operators incur "routinely late time" not included in this schedule because they arrive at the end points of their runs after the scheduled arrival times.
See Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 21:10-12 ("Your schedule is what you're paid for."); Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 23 ("The amount I receive in compensation per day is set by the same schedule for the particular run assignment. If my vehicle arrives at the ending point after the scheduled arrival time, then I am not compensated for such time."); see also Docket Nos. 145-1, 142, Tidrick Decl., Ex. B, Operators' Decls.
Operators claim that runs are "routinely" late. See Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls. VTA is aware that operators sometimes arrive at the end points of their runs late. See Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 17:3-20 (noting that operators complain that "there is not enough time" in the schedule and they are "rushing to get from point A to point B"), 18:20-19:1 (noting that operators submitted "overtime cards for coming in late"), 19:11-20:10 ("I know that occasionally [buses] do come back to the division late."). Plaintiffs have presented evidence that VTA maintains policies and practices that contribute to this lateness. For instance, VTA's "general rule...that [operators are] not supposed to leave [time points] early" prohibits operators from driving ahead of schedule. See Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 32:5-24, 40:11-41:18.
VTA broadly asserts that "[t]he alleged common policies on which Plaintiffs rely do not actually exist." However, given the substantial evidence Plaintiffs have presented, VTA's attempt to negate the existence of these policies is unpersuasive. Accordingly, Plaintiffs have presented "significant proof" that VTA has established and maintained "uniform policies and practices relating to compensation of class members that admitted of no appreciable discretion and that allegedly resulted in systematic, illegal under-compensation." With respect to these policies and practices, Plaintiffs have raised the common questions of whether the categories of time for which Plaintiffs seek payment are compensable work time and whether VTA's compensation scheme violates the SJMWO, Wage Order No. 9 or California Labor Code § 1194 by failing to separately allocate pay for time spent on various non-driving work tasks. With respect to routinely late time, Plaintiffs also present the common question of whether VTA has "actual and constructive knowledge of the regularity and extent of [uncompensated work time] such that its failure to compensate [o]perators for such time is knowing and willful." Resolution of these questions will resolve "in one stroke" whether the class members have a legal right to be compensated for these categories of time. Plaintiffs thus present common questions that "will connect" the compensation scheme to "their claim for class relief."
See Docket No. 154 at 12-13.
See Stitt, 2014 WL 1760623 at *4.
See Docket No. 143 at 15-16.
See Stitt, 2014 WL 1760623 at *5.
See Wal-Mart, 131 S.Ct. at 2551.
See Ellis, 657 F.3d at 981 (internal citations omitted).
VTA cites to its purported policy "to pay for all work performed" to support its contention that commonality is not established because Plaintiffs have not shown that common policies or practices will drive resolution of the lawsuit. In particular, VTA points to its procedure by which employees can submit extra time reports when they work longer than the hours that are usually allocated to their shifts. The regular submission of these records and routine payment for the additional time claimed, VTA contends, shows VTA is not aware that operators work additional time without submitting extra time records. VTA also asserts that its receipt of less than one extra pay request per operator per week shows that there is "no evidence" that unpaid routinely late time occurs regularly. Further, VTA claims that operators have not been undercompensated because VTA pays all operators for at least eight hours of work on all shifts regardless of the actual length of the shift.
See Docket No. 154 at 10-11; see also Docket No. 155, Terrazas Decl. at ¶ 15 ("It is VTA policy that all employees are to be paid for all time worked and that there be no off the clock work unpaid.").
See Docket No. 154-1, Geleynse Decl. at ¶¶ 3-6.
See Docket No. 154 at 11, 13. VTA receives about "36,500 extra pay requests annually from a workforce of approximately 975 Bus and Light Rail Operators." See Docket No. 154-1, Geleynse Decl. at ¶¶ 3-6. These requests are "rarely denied." See id.
See Docket No. 154 at 11.
See id.; Docket No. 155, Terrazas Decl. at ¶ 11 ("At all times from the year 2008 to present, the Collective Bargaining Agreements between VTA and ATU Local 265 provided for an eight hour daily pay guarantee for all Bus and Light Rail Operators.").
The court finds these claims unavailing. Nothing about the policies VTA identifies negate the classwide nature of the questions of whether the categories of time Plaintiffs identify are compensable work time and whether the failure of VTA's compensation scheme to separately allocate pay for these categories of time is improper. To the contrary, as Plaintiffs note, VTA's assertions regarding these policies actually raise additional common questions. For instance, Plaintiffs contend that VTA has constructive and actual knowledge that routinely late time occurs for which operators do not submit extra time requests. Plaintiffs further assert even though VTA is unaware that this under-compensation occurs, VTA adheres to burdensome policies regarding the extra pay request process which systematically result in operators not submitting such requests. These practices, Plaintiffs assert, constitute a "policy-to-violate-the-policy" against VTA's stated prohibition against off-the-clock work. As stated above, Plaintiffs also contend that VTA's policy of a guarantee of eight paid hours per shift should not "offset any time" operators spend performing tasks that are not included in their schedules. Because the disputed policies apply to all class members, Plaintiffs' allegations about these polices raise the common questions of whether VTA's extra time report practices and guarantee of eight hours per shift actually prevent off-the-clock work.
Plaintiffs contend that VTA has knowledge that routinely late time occurs because VTA monitors vehicle locations using GPS devices. See Docket No. 143 at 11 (citing Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 32:5-34:18; Docket No. 145-2, Tidrick Decl., Ex. G, Cuff Depo. at 16:5-16, 29:10-30:19, 32:3-18); see also Docket Nos. 145-1, 145-2, Tidrick Decl, Ex. B, Operators' Decls. Plaintiffs also claim that VTA is aware vehicles are routinely late because it has received reports from operators showing that vehicles are late. See Docket No. 143 at 11 (citing Docket No. 145-2, Tidrick Decl., Ex. F, Rosenberg Depo. at 44:1-46:11; Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 13:20-14:18; Docket Nos. 148-6 to 149-4, Tidrick Decl., Exs. M, N). Further, VTA is aware that operators do not always submit extra time requests when their vehicles are late. See Docket No. 145-2, Tidrick Decl., Ex. D, Stanislaw Depo. at Vol. 1 at 61:15-62:1; Docket No. 145-2, Tidrick Decl., Ex. G, Cuff Depo. at 31:8-22; Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 15:3-20.
See Docket No. 143 at 11-13. Plaintiffs note that VTA keeps blank extra pay request forms at divisions instead of in its transit vehicles or operators' pouches. See id. at 12 (citing Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 38:19-39:19). Further, VTA conceded that it might consider it "excessive" if an operator turned in an extra pay request every day. See Docket No. 145-2, Tidrick Decl., Ex. H, Chaney Depo. at 34:11-20. VTA also does not allow operators to call in their unscheduled time by telephone and does not discipline supervisors who know that operators have performed unscheduled work for which they have not submitted an extra pay request. See id. at 38:4-9, 54:7-21. The named plaintiffs and other operators state that VTA's "burdensome and confusing" procedures regarding extra pay requests discourage them from submitting such requests. See Docket Nos. 145-1, 145-2, Tidrick Decl., Ex. B, Operators' Decls.
See Docket No. 143 at 13 (citing Mahoney v. Farmers Ins. Exch., Case No. 4:09-cv-2327, 2011 WL 4458513, at *9 (S.D. Tex. Sept. 23, 2011) (concluding that defendant's actual practices regarding "off-the-clock work" are evidence of a "policy-to-violate-the-policy")).
See Docket No. 167 at 7.
VTA may ultimately be able to show that Plaintiffs' positions lack merit and that its policies properly compensate the class members. But the court "is required to examine the merits of the underlying claim in this context, only inasmuch as it must determine whether common questions exist" and must not "turn class certification into a mini-trial" by "determin[ing] whether class members could actually prevail on the merits of their claims." Rather, the court's conclusion that resolution of the questions Plaintiffs raise will "generate common answers apt to drive the resolution of the litigation" is sufficient to meet the commonality requirement.
See Ellis, 657 F.3d at 983 n.8.
See Abdullah, 731 F.3d at 957 (emphasis in original).
Plaintiffs have shown that VTA has uniform policies and procedures relating to compensation that "did not leave the relevant compensation decisions to the discretion of local supervisors." Given this uniformity, divergences in the behavior of individual operators or their responses to these policies not establish a lack of commonality. In particular, the ability of operators to decide not to submit extra time reports for individualized reasons or arrive at the end points of their runs late for reasons that are "unrelated to compensable work time" does not negate the "class-wide nature of the primary question" of whether VTA's policies systematically result in under-compensation. Likewise, VTA's defense that Plaintiffs engaged only in de minimis activities for which they are not entitled to compensation does not preclude class treatment because analysis of this defense requires resolution of a "common issue of law," not an "individualized inquiry" into each operator's activities. As a result, Plaintiffs have met the commonality requirement with respect to all categories of compensable time at issue.
See Stitt, 2014 WL 1760623 at *6 (citing Eddings v. Health Net, Inc., Case No. 10-1744-JST(RZx), 2011 WL 4526675, at * 1, (C.D. Cal. July 27, 2011) (finding that defendant subjected the purported class members to the same "timekeeping and rounding policies" and plaintiffs' claim "satisfies Dukes and is proper for classwide resolution")).
See Stitt, 2014 WL 1760623 at *4; see also Docket No. 154-2, Rosenberg Decl. at ¶¶ 3-4 (asserting that the data Plaintiffs possess does not show "the reasons why a bus was late" and that "[b]uses can return late to Divisions for many reasons unrelated to work" such as operators running personal errands or taking extended breaks).
See Docket No. 154 at 12; Bibo v. Fed. Express, Inc., Case No. C-07-2505-TEH, 2009 WL 1068880, at *13 (N.D. Cal. Apr. 21, 2009) ("[W]hether the amounts of work in question are de minimis is a common question of law."); see also Stitt, 2014 WL 1760623 at *5-6 (rejecting defendant's claim that the commonality requirement is not met because defendant claimed that "the record evidence shows that [the time for which plaintiffs seek compensation] is de minimis"). In the cases to which VTA cites, courts found that de minimis defense weighed against class certification in part because plaintiffs presented substantial evidence of uniform policies and procedures that precluded resolution of the de minimis defense on a classwide level. See Docket No. 154 at 12 (citing cases); Reed v. County of Orange, 266 F.R.D. 446, 461-62 (C.D. Cal. 2010) ("Since Plaintiffs have not provided substantial evidence of a single [defendant] policy or practice that violates the FLSA...the Court finds that proving [the de minimis defense] will be as individualized as the claims are."); Hawkins v. Securitas Sec. Services USA, Inc., 280 F.R.D. 388, 399-401 (N.D. Ill. 2011) (finding that de minimis defense could not be resolved on a classwide basis for some of plaintiffs' claims when "individual security officers in the putative class worked under different circumstances and were managed by different personnel"); Espinoza v. Cnty of Fresno, 290 F.R.D. 494, 506-7 (E.D. Cal. 2013) (The "de minimis defense [is not] meaningful [when] the various plaintiffs' claims [are] like apples and oranges...By contrast, where there is less variation, the de minimis defense is susceptible of classwide resolution, such as by determining how much time is de minimis as a matter of law and what characteristics time must have before it can be considered de minimis") (internal citations omitted). Here, Plaintiffs have shown that their claims are sufficiently uniform that "the de minimis defense is susceptible of classwide resolution." See id.
Fourth , Plaintiffs have met the typicality requirement. Typicality "refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." While typicality and commonality occasionally merge, typicality derives its independent legal significance from its ability to "screen out class actions in which the legal or factual position of the representatives is markedly different from that of other members of the class even though common issues of law or fact are present." The test of typicality is "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs and whether other class members have been injured by the same course of conduct." However, "[u]nder the rule's permissive standards, representative claims are 'typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical."
Parsons, 754 F.3d at 685 (internal citation omitted).
7A Wright, § 1764.
Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).
Parsons, 754 F.3d at 685 (internal citations omitted).
The named plaintiffs and all members of the proposed class are similar because they all are or were employed as bus or train operators during the proposed class period. VTA asserts that the typicality requirement is not met in part because the named plaintiffs' claims are so individualized that they even diverge from each other with respect to the categories of time for which they seek compensation. The court agrees with VTA the named plaintiffs' claims are not "substantially identical" to the other class members' claims. But these differences do not negate the fact that all proposed class members' claims are grounded on the same VTA policies, practices and procedures. Further, VTA's contention that it can assert "unique" de minimis defenses against some of the representative's claims is unpersuasive because as previously noted, the de minimis defense can be resolved on a class-wide basis even if the amounts of time for which each representatives and class member seek compensation differ. Accordingly, the named plaintiffs meet the typicality requirement because their claims are "reasonably coextensive" with the claims of the other class members.
See Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶ 2, Silveira Decl. at ¶ 2. VTA's complaint that Silveira is an improper representative because he was "never before identified as a class representative and is a "late minute substitution" lacks merit because VTA stipulated to the substitution and amendment adding Silveira as a representative. See Docket No. 154 at 4; see also Docket Nos. 141, 142.
See Docket No. 154 at 16-17; see also Docket No. 145-1, Tidrick Decl., Ex. B, Rosa Decl. at ¶¶ 7, 11, 15 (asserting that Rosa has been compensated straight time for start-end travel time, split-shift travel time and turn-in time); Docket No. 145-1, Tidrick Decl., Ex. B, Silveira Decl. at ¶¶ 7, 11, 21 (asserting that Silveira has not been compensated for all straight time or at one-and-a-half time with respect to start-end travel time, split-shift travel time and turn-in time).
See Parsons, 754 F.3d at 685.
See Lopez v. G.A.T. Airline Ground Support, Inc., Case No. 09-cv-2268-IEG(BGS), 2010 WL 3633177, at *7 (S.D. Cal. Sept. 13, 2010) ("Notwithstanding these variations in the named Plaintiffs' claims, the Court finds Plaintiffs' claims are sufficiently representative of the proposed class members . . . Although not all the named Plaintiffs can assert all of the claims, their claims are collectively typical of the class members as a whole.").
See Docket No. 154 at 16; see also Docket No. 145-1, Tidrick Decl., Ex. B, Silveira Decl. at ¶ 19 (turn-in time activities take "up to 5 minutes every work day"), ¶ 30 (routinely late time is between about one and ten minutes); Docket No. 145-1, Tidrick Decl., Rosa Decl. at ¶ 13 (turn-in activities take "up to ten (10) minutes every time").
See Parsons, 754 F.3d at 685.
Fifth , Plaintiffs have met the adequacy requirement. "To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them." Class representatives and counsel are adequate if they do not have "any conflicts of interest with other class members" and if they will "prosecute the action vigorously on behalf of the class." The adequacy of class counsel concerns whether proposed counsel is (1) "qualified, experienced and generally able to conduct the litigation" and (2) will "vigorously prosecute the interests of the class." "These standards are generally met with members of the bar in good standing typically deemed qualified and competent to represent a class absent evidence to the contrary."
Hanlon, 150 F.3d at 1020.
See Fed. R. Civ. P. 23(a)(4); Hanlon, 150 F.3d at 1020.
Stitt, 2014 WL 1760623 at *7 (citing Fed. R. Civ. P. 23(a)(4); 23(g)).
See id. (citing Newberg on Class Actions § 3:72 (5th ed.)).
VTA contends that the Plaintiffs have not zealously pursued the class members' interests because they choose to seek unpaid straight time and minimum wage claims when they could have sought claims for unpaid overtime. VTA claims that this decision is contrary to the class members' best interest because the Fair Labor Standards Act does not provide compensation for hours worked beyond eight hours in a day and because class members will lose their rights to seek overtime compensation for claims that are adjudicated in this action. However, the existence of alternative strategies does not show that the strategy Plaintiffs selected is inadequate. Plaintiffs contend they have made "reasonable decisions to pursue statutory minimum wage claims under Wage Order No. 9...and to pursue overtime claims under the FLSA." Although Plaintiffs may not ultimately prevail on these claims, they have presented sufficient justification for their chosen strategy to establish that it is a method by which they can "prosecute the action vigorously on behalf of the class." Further, given proposed class counsel's extensive experience with class action litigation and wage and hour actions, VTA's suggestion that its status as "such a small law firm" would prevent it from being able to adequately represent the class lacks merit.
See Docket No. 154 at 17.
See id.
See Docket No. 167 at 14.
Hanlon, 150 F.3d at 1020.
See Docket No. 145, Tidrick Decl. at ¶¶ 17-18; Docket No. 149-4, Ex. O.
Docket No. 154 at 17.
Likewise, proposed class counsel's engagement in alleged misconduct in relation to the Alameda-Contra Costa Transit District in another lawsuit, while more disconcerting than proposed class counsel's size, also does not establish that proposed class counsel is inadequate. AC Transit concluded that one attorney for proposed class counsel used his position as a board member at AC Transit to gain access to privileged and confidential information regarding FLSA litigation against AC Transit in order to advance litigation against VTA and Tri-County Metropolitan Transportation District of Oregon. AC Transit also concluded that this attorney took part in confidential legal briefings about the FLSA litigation against AC Transit without informing its board that he was involved in similar cases against VTA and Tri-Met. Complaints were made to the state bars of California and Oregon and the AC Transit Board of directors "publicly censured" this attorney.
See Docket No. 154-3, Ryan Decl. at ¶¶ 3-8.
See id. at ¶ 6.
See id. at ¶¶ 7-8; Docket No. 168, Tidrick Decl. at ¶ 4.
Ultimately, the State Bar of California determined that the allegations of misconduct did not "warrant further action" and the Oregon State Bar concluded that there was not probable cause of an ethics violation. The court does not condone "reward[ing]" misconduct with an appointment as class counsel. But given the dismissal of both of these actions and proposed class counsels' status as "members of the bar in good standing," the court does not find that this attorney's actions rise to the level sufficient to establish that proposed class counsel are not "qualified and competent to represent a class."
See id. at ¶ 4, Exs. A, B.
See Docket No. 154 at 18.
See Stitt, 2014 WL 1760623 at *7.
Sixth , Plaintiffs have shown that common questions of law and fact predominate. Under Rule 23(b)(3), Plaintiffs must establish that "questions of law or fact common to class members predominate over any questions affecting only individual members." Rule 23(b)(3)'s predominance requirement "tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation." "Where common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis."
Wang, 737 F.3d at 545 (internal citations omitted).
Hanlon, 150 F.3d at 1022.
With respect to Plaintiffs' claims for unpaid wages for time spent on non-driving activities, common questions predominate. Because Plaintiffs have presented substantial evidence that VTA has common policies not to separately allocate pay for these time spent on these activities, Plaintiffs' claims for these categories of time raise questions regarding "the legality of [VTA's] payment practices [which] apply to all [o]perators." Accordingly, although the extent to which these policies affect each operator differs, for all Plaintiffs' claims for the time spent on these activities, "the predominant question is whether [VTA's] policies and practices not to compensate [the class members] for such time" is illegal.
See Stitt, 2014 WL 1760623 at *8.
See id.
Likewise, although each operator's behavior varies, the class is "sufficiently cohesive to warrant adjudication by representation" with respect to Plaintiffs' claims for routinely late time. VTA contends its policies against off-the-clock work insure that unpaid time occurs only as a result of individual operators' decisions not to submit extra time reports and other "individualized factors." However, as stated above, the policies VTA identifies create common questions regarding the degree to which these policies actually prevent off-the-clock work. These issues, in addition to questions regarding whether VTA has knowledge that operators work routinely late time without compensation and whether its scheduling policy systematically requires operators to incur routinely late time, are central to the determination of whether the class members are entitled to compensation for routinely late time. It is true that individual operators may decide not to submit extra time reports for unique reasons. However, in light of the prevailing nature of the common questions identified above, VTA's assertion that "individual issues essential to liability" predominate is unpersuasive.
See Wang, 737 F.3d at 545.
See Docket No. 154 at 13.
See Stitt, 2014 WL 1760623 at *9 (noting the existence of similar common questions with respect to operators' claims for routinely late time).
See Docket No. 154 at 13.
Likewise, VTA's claim that, like in cases in which courts "repeatedly" held that "off-the-clock claims for unpaid wages present individualized issues that preclude certifications as a class," VTA's "policy pays for overtime work and requires that such work be reported" is misguided. The cases to which VTA cites establish the principle that when "the evidence establishes a formal policy prohibiting off-the-clock work, plaintiffs must present substantial evidence of a systematic company policy to pressure or require employees to work off the clock." But even if the court found that VTA's extra pay report procedure was sufficient to establish a "formal policy" against off-the-clock work, this would not show that individual questions predominate because, as stated above, Plaintiffs have presented "substantial evidence" that VTA follows a "policy-to-violate-the-policy" against off-the-clock work.
See Docket No. 154 at 10-11 (citing cases).
See Brewer v. Gen. Nutrition Corp., No. 11-CV-3587-YGR, 2014 WL 5877695, at *11 (N.D. Cal. Nov. 12, 2014) (internal citations omitted); In re Autozone, Inc. Wage and Hour Employment Practices Litigation, 289 F.R.D. 526, 539 (N.D. Cal. 2012) ("Here, ...there is a uniform policy prohibiting off-the-clock work. In light of that policy, Plaintiffs must present substantial evidence that AutoZone requires its employees to work off-the-clock."); Collins v. ITT Educational Services, Inc., Case No. 12-cv-1395-DMS-BGS, 2013 WL 6925827, at *6 (S.D. Cal., July 30, 2013) (Because "the only uniform policy Plaintiffs have shown is Defendant's written policy requiring employees to report all time worked...and prohibiting off-the-clock work.... In light of that policy, Plaintiffs must establish that they were uniformly required to work overtime and not report it."); Ortiz v. CVS Caremark Corp., C-12-05859 EDL, 2013 WL 6236743, at *9 (N.D. Cal. Dec. 2, 2013) (employer had policy against off-the-clock work and there was "no evidence" of a policy requiring off-the-clock work).
See Brewer, 2014 WL 5877695 at *11.
Plaintiffs have also sufficiently explained how they intend to prove damages for their unpaid wage claims on a class-wide basis. In Behrend, the Supreme Court held that in order to satisfy the predominance inquiry, a plaintiff must present a damage model that (1) identifies damages that stem from the defendant's alleged wrongdoing and (2) establishes that "damages are susceptible of measurement across the entire class." Damage calculations at the class certification stage are not required to be "exact," but the court's analysis of the proposed damage calculation model must be "rigorous." However, the Ninth Circuit recognizes "the presence of individualized damages cannot, by itself, defeat class certification" and holds that Behrend requires plaintiffs "to show that their damages stemmed from the defendant's actions that created the legal liability."
Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013).
See id.
Leyva, 716 F.3d. at 514.
To prove that damages could be calculated on a class-wide basis, Plaintiffs offered the opinion of Richard Drogin, who asserted he could determine damages amounts for the unpaid wages that the class members are allegedly owed based on the data Plaintiffs provided to him. Drogin states that to calculate damages for unpaid time (1) "[a]n exact calculation for everyone in the class can be made based on available data" or (2) "a random sample can be drawn, and damages calculations for the sample can be projected to the class as whole, using appropriate statistical formulas."
See Docket No. 150, Drogin Decl. at ¶¶ 4-6.
See id. at ¶ 22.
VTA claims that Plaintiff cannot meet the predominance requirement because Plaintiffs have not shown that "damages are capable of measurement on a classwide basis." In particular, VTA asserts that Drogin's first proposed method does not show damages are susceptible to common proof because he identifies sources of data without showing how he proposes to use those sources to perform an "exact calculation." But while Drogin could have provided more insight into his proposed application of his first method to the available data, this lack of detail does not show that Plaintiffs have fallen short of Behrend because at this stage of the litigation damage calculations need not be "exact."
See Docket No. 154 at 15 (citing Behrend, 133 S.Ct. at 1433).
See Docket No. 154 at 14.
See Behrend, 133 S.Ct. at 1433.
Likewise, VTA's allegation that Drogin's first method does not "measure up to the Daubert standard of reliability" is unavailing. In Wal-Mart, the Supreme Court stated that it "doubt[ed]" the "proposition that Daubert simply did not apply" at the class certification stage but did not provide guidance about the "extent and rigor of the appropriate Daubert analysis." However, when considering expert testimony in relation to the predominance requirement, the central question is whether Plaintiffs have met their burden to show that damages can be calculated on a classwide basis. Accordingly, the relevant inquiry is a "tailored Daubert analysis which 'scrutinize[s] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence.'"
See Docket No. 154 at 14.
See Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 490 (C.D. Cal. 2012) (citing Wal-Mart, 133 S.Ct. at 2553-54).
See id. at 495; (citing In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 614 (8th Cir. 2011)); see also Sirko v. IBM Corp., Case No. CV-13-03192-DMG, 2014 WL 4452699, at *6 (C.D. Cal. Sept. 3, 2014) ("At the class certification stage, courts should apply a 'tailored' Daubert analysis to determine the reliability of the expert's testimony regarding the Rule 23 requirements, not the merits of the case.") (internal citations omitted).
Here, Drogin proposes to calculate damages using standard methodology premised on data common to all class members. Further, given that the data Drogin proposes to use is from VTA's own records, VTA's assertion that Drogin's opinion falls short of Daubert because "there is no evidence" that data upon which the calculation would rely "is itself reliable" lacks merit. As a result, Plaintiffs have met their burden under Behrend because Drogin's proposed method is sufficiently reliable to establish that damages are "susceptible of measurement across the entire class."
See Docket No. 150, Drogin Decl. at ¶¶ 4-19.
See id. at ¶ 4.
See Docket No. 154 at 14.
Behrend, 133 S.Ct. at 1433.
VTA's attempt to invalidate Drogin's second proposed method of using random sampling to extrapolate damages is also unavailing. VTA complains that Drogin's opinion does not apply the facts of the case to the "theoretical possibility" of extrapolating damages based on sampling. However, Drogin, while not providing exacting detail, shows that he could calculate class-wide damages by creating a "random sample of class members" and requiring people in the sample to be deposed or questioned at trial so that that trier of fact could make "findings that would be the 'data' used by the statistician to calculate unpaid time." In a similar vein, VTA complains that Drogin does not explain how sampling will take the variations in individual operators' claims into account. However, the existence of such variations is not a sufficient reason to defeat class certification analysis when "damages will be calculated," as Drogin proposes to do here, "based on the wages each employee lost due to [the VTA's allegedly] unlawful practices."
See Docket No. 154 at 15.
See Docket No. 150, Drogin Decl. at ¶¶ 32-33. VTA's assertion that Drogin's opinion is defective because he did not describe the necessary sample size or anticipated margin of error is incorrect. See Docket No. 154 at 14. Drogin may make that assessment after the parties have stipulated to or the court has ruled on what margin of error is acceptable. See Docket No. 150 at ¶ 29 ("The choice of a required margin of error estimate is an issue that should either be agreed upon by the parties, or set by the court.").
See Docket No. 154 at 14-15.
See Tokoshima v. Pep Boys - Manny Moe & Jack of California, Case No. C-12-4810-CRB, 2014 WL 1677979, at *8 (N.D. Cal. Apr. 28, 2014) (citing In re: High-Tech Employee Antitrust Litig., 985 F.Supp.2d 1167, 1185 (N.D. Cal. 2013)); see also Dow Chem. Co. v. Seegott Holdings, Inc., 768 F.3d 1245, 1257, 1269 (10th Cir. 2014) (noting that "Wal-Mart does not prohibit certification based on the use of extrapolation to calculate damages" and that a defendant "has no interest in the method of distributing the aggregate damages award among the class members").
Seventh , a class action is superior to other methods for adjudication. When seeking to certify a class under Rule 23(b)(3), plaintiffs must show that a class action is "superior to other available methods for fairly and efficiently adjudicating the controversy." To determine if a class action is superior, courts consider the following non-exhaustive factors: (1) "class members' interest in individually controlling the prosecution or defense of separate actions"; (2) the extent and nature of any litigation concerning the controversy already begun by or against the class members"; (3) "the desirability or undesirability of concentrating the litigation of the claims in the particular forum"; and (4) "the likely difficulties likely in managing a class action."
The first factor weighs in favor of certification. A class action is a superior method of adjudication when few class members would have "any meaningful redress against [the defendant]" because "few potential class members could afford to undertake individual litigation against [VTA] to recover the relatively modest damages at issue." The damages at issue here are too modest for individual lawsuits to be practical because each operator would recover a small amount of money and pursuit of the individual operators' claims would require extensive examination of VTA's policies, practices and procedures.
Chamberlan v. Ford Motor Co., 223 F.R.D.524, 527 (N.D. Cal. 2004).
The second factor also weighs in favor of certification. Plaintiffs' counsel asserts that it is unaware of any individually filed actions alleging the same claims that Plaintiffs assert here, and VTA makes no representation that such actions exist. The absence of such individual suits is another indication that "each class member's potential damages recovery does not 'provide the incentive for any individual to bring a solo action prosecuting his or her rights.'"
See Docket No. 143 at 24.
See Stitt, 2014 WL 1760623 at *10 (internal citation omitted).
As to the third factor, the court finds that concentration the litigation in this court is desirable. The class members' claims all stem from VTA's allegedly improper policies, practices, and procedures. It would be both "redundant" and a "wildly inefficient use of limited judicial resources" for each operator to file an individual lawsuit alleging claims for their unpaid wages. As Plaintiffs note, such individual lawsuits would result in "several hundred trials re-litigating...the same legal questions" about VTA's conduct. Further, the modest amounts at stake in each of these lawsuits makes it unlikely that the individual operators could afford to pursue their claims. And even if such individual lawsuits were economically feasible, the chance these individual suits would convince VTA to reform its conduct is "infinitesimal." Accordingly, the third factor weighs in favor of certification.
See id. at *10.
See Docket No. 143 at 24-25.
See Stitt, 2014 WL 1760623 at *10.
The fourth factor weighs in favor of certification because adjudication of this case as a class action will not present unmanageable difficulties. VTA's contention that class treatment of Plaintiffs' claims is "impossible" because "separate and controlling inquiries" regarding each operator's claims predominate fails. In support of this claim, VTA essentially repeats its prior assertion that the common questions of law and fact do not predominate because "there is no employer wide policy covering the purported claims" and each operators' claim for "each day must be individually tested for factual support and legal significance." The court has already concluded that individualized inquiries about each operator's conduct do not predominate over common questions. Given that common questions predominate and the class is easily ascertainable, "certification will not generate any complexities from a case management perspective." Because all the factors weigh in favor of certification, a class action is superior to other methods for adjudicating this lawsuit.
See Docket No. 154 at 18.
See id.
See Stitt, 2014 WL 1760623 at *10.
IV.
The court GRANTS Plaintiffs' motion for class certification under Rule 23(b)(3) and appoints named Plaintiffs as class representatives. The court also designates as class counsel under Rule 23(g) The Tidrick Law Finn and giants class counsel authorization to send to all class members the notice attached to the Declaration of Steven G. Tidrick. The class is defined as follows: "All individuals who are currently employed, or formerly have been employed, by the Santa Clara Valley Transportation Authority as a bus or tram operator at any time on or after August 17, 2009, excluding anyone employed by counsel for Plaintiffs in this action, and any judge to whom this action is assigned and his or her immediate family members." SO ORDERED. Dated: February 24, 2015
See Docket No. 145-1, Tidrick Decl., Ex. A.
/s/_________
PAUL S. GREWAL
United States Magistrate Judge