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Following the Supreme Court’s game-changing decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), courts have struggled to determine the level and nature of proof a class plaintiff must present at the class certification stage. This is especially so when it comes to the requirements related to commonality: that there be questions of law or fact common to the class and that the common questions predominate over any questions affecting only individual class members. Fed. R. Civ. P. 23(a)(2), (b)(3). Recently, Chief District Judge George King of the Central District of California refused to certify a wage-and-hour class on the ground that plaintiff was unable to establish commonality. See Pedroza v. PetSmart, Inc., No. ED CV 11-298-GHK (DTBx) (C.D. Cal. Jan. 28. 2013) (minute order).  This detailed order offers many great lessons for wage-and-hour actions brought on a class basis.

In Pedroza, the plaintiff, a former Store Manager of a PetSmart store in Apple Valley, California, contends that PetSmart misclassified her and other Store Managers as exempt employees. Bringing the familiar panoply of Labor Code claims related to misclassification, she argues that Store Managers do not “customarily and regularly exercise[] discretion and independent judgment” and are not “primarily engage[] in duties which meet the test of exemption.” She sought to certify a class of “[a]ll persons who were employed by PetSmart, Inc. in California as a Store Manager at any time on or after November 29, 2006.”

In order to satisfy the commonality requirement for class certification, a plaintiff must show that the common issue or issues are material to resolution of the claims and that the putative class members suffered the same injury. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1992). The district court noted that, after Dukes, the real focus is not so much on the existence of common questions as it is on common answers: “what matters to class certification is not the raising of common questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”  (quoting Dukes, 131 S. Ct. at 2551). Moreover, the court continued, the Ninth Circuit has held that Dukes requires “a ‘rigorous analysis’ to determine if Plaintiff has offered ‘significant proof’ of a common policy or practice ‘that could affect the class as a whole.’” (quoting Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011)).

The court held that Pedroza’s offered “common proofs” were insufficient to satisfy this “rigorous analysis.” Pedroza relied primarily on declaration from 12 former Store Managers, all from the southern California area. But the class she sought to represent consisted of approximately 550 current and former Store Managers from stores across the state of California. Dukes requires that such “anecdotal evidence” must be representative in number and geography if offered to demonstrate a common practice, and the court noted that even if all 12 declarations were accepted as true, this would not show a common practice throughout the entire state of California. Moreover, the defense was able to show contradictions between statements in the declarations and statements made in subsequent deposition testimony, and accordingly the court held that the declarations “at most give rise to a weak inference of a common practice, if at all.”

The second form of “common proof” offered by Pedroza was a “uniform training program” for new Store Managers. Pedroza alleged that she and other putative class members had observed the Store Manager in this training program perform non-managerial tasks normally assigned to hourly associates for more than 50 percent of the time. But the court held that such a program would have “only limited value” in establishing a common practice because training materials don’t show how the Store Managers actually spent their time when they were doing the job for which they were employed.

Similarly, a uniform scheduling system, staffing reports, and other business records offered by Pedroza also failed the court’s rigorous analysis because none of these materials indicated how Store Managers actually spend their time, the key question at issue. Records like cash register or salon records, for instance, provided only piecemeal information that Store Managers did perform some nonexempt tasks at times. Other records like alarm codes records or “Manager on Duty” schedules showed only the hours that a Store Manager was in the store, but they could provide no information about how much of that time was spent on exempt or nonexempt tasks.

Pedroza fared no better with her proposed trial plan, and in particular with her proposed expert testimony. She proposed a two-part trial in which the court would first determine whether particular tasks performed by Store Managers were exempt or nonexempt, then use an expert’s “statistical sampling of the time the store managers spend in performing [various] job tasks so the court can determine whether fifty percent or more of the tasks being performed by store managers are exempt vs. non-exempt tasks.” As the court noted, although Dukes left open the question whether a Daubert examination of proposed expert testimony for reliability is required at the class certification stage, the Ninth Circuit’s Ellis opinion holds that Daubert does not go far enough when the expert testimony concerns a certification requirement such as commonality. Rather, “it appears that under Ellis, we are required to engage in Daubert analysis to the extent the testimony concerns a Rule 23 requirement. If we find that the expert testimony is not admissible, the inquiry ends there; but if we find the testimony admissible, we must engage in further analysis of its persuasiveness under the relevant Rule 23 standard.”

The court held that not even Daubert’s inquiry into the reliability of the expert’s methodology was satisfied. The court’s analysis and dismissal of the expert declaration will provide useful arguments to contest similar evidence based on statistical analyses. “Here, [the expert] fails to provide any specific information about the methodology of his proposed survey, much less provide sufficient information for us to evaluate the methodology’s soundness. Indeed, [the expert] does not explain what data he plans to use in developing the survey, why such data is sufficiently complete and reliable, how he plans to use such data to develop a survey, how he plans to select a representative samples of [Store Managers] to participate in the survey, why such a selection would be representative, and why the survey will reliably show how the [Store Manager] allocated their time between exempt and nonexempt tasks. Instead, [the expert] merely ‘promises’ that he will be able to complete a survey that can reliably show . . . an issue that concerns commonality . . . . We find and conclude that this type of unsupported, conclusory ‘promise’ of reliable date is insufficient to pass muster under Daubert.”

And as if Pedroza had not already provided ample valuable analysis for use in wage-and-hour class actions, the court went on to hold that Pedroza could not offer “significant proof” that PetSmart had a common policy or practice of “stripping” Store Managers of nearly all discretion. Pedroza argued that PetSmart’s manuals and corporate directives tightly controlled every aspect of the Store Managers’ jobs, even regulating “the smallest of details.” Not so, the court held, and it went through the manuals and policies to show that Store Managers were both implicitly and expressly in some places required to exercise discretion on consequential matters, including distribution of shifts (even if policies dictated the time, location, and duration of the shifts), and conduct of meetings (even if directives specified materials to bring, timing of the meeting, and subjects to be addressed). Moreover, the court noted, the manuals instructed Store Managers to “use good judgment” in determining how to recognize and reward associate behavior. And going back to the issue of common proof, “absent manuals that appear to strictly dictate the [Store Managers’] performance and evidence that [Store Managers] complied with any such manuals, we cannot determine how often the [Store Managers] exercise their discretion on matters of consequence on a classwide basis.” The court also found instructive that Store Managers are evaluated on ability to exercise discretion and judgment in categories such as “vision & strategy,” “develop talent,” “lead the culture,” “manage personal insight & growth,” think critically,” and “exercise good judgment.”

And Pedroza may have still more to offer for defending wage-and-hour class actions. As is the case in much litigation of this type in California, Pedroza also brought so-called “PAGA” claims (Labor Code violations brought under the Private Attorneys General Act). Since the California Supreme Court held in Arias v. Superior Court, 46 Cal. 4th 969, 980 (2009), that PAGA claims do not have to satisfy state class action requirements, the federal courts in California have been trying to determine whether the same is true with respect to federal Rule 23 requirements. The district courts are split on the issue right now, and Judge King sided with the view that PAGA claims can proceed on a representational basis without satisfying Rule 23. But in light of the rest of the order setting out Pedroza’s inability to offer common proof, one wonders how such a representative action might be able to proceed. This order gives no indication of what such a trial plan might look like, so we will all be watching closely to see how and if the PAGA claims proceed.