Ninth Circuit Affirms Decertification Of California Wage And Hour Case Involving Dock Supervisors
Thomas Hobbes famously observed that life is short, nasty, and brutish. A recent case from the Ninth Circuit demonstrates that litigation is similar, except that it is not short.
In Marlo v UPS.pdf (9th Cir., April 28, 2011), the plaintiff was a UPS employee who held various supervisory positions in connection with the movement of freight. He contended that he was misclassified as an exempt employee under California law and asserted claims for unpaid overtime as well as the usual assortment of related California claims. This claim, incidentally, would have been difficult to bring under federal law due to the application of the Motor Carrier Act (“MCA”). The FLSA contains an overtime exemption for employees performing certain functions in connection with interstate transportation under the MCA, but has no direct California equivalent. See 29 U.S.C. section 213(b)(1).
Marlo brought his action in May of 2003, and the court certified a class of California UPS supervisors in 2004. In 2005, the district court granted summary judgment in UPS’s favor. In 2007, however, in a decision that spans only a handful of paragraphs, the Ninth Circuit reversed, citing unspecified questions of fact. 254 Fed. Appx. 568 (9th Cir. 2007). So far, so good for the plaintiffs, although the case was now four years old.
On remand, the district court decertified the class. Upon reviewing the parties’ positions, it found that the need for an individual inquiry demonstrated that the case did not satisfy the predominance requirement of Rule 23(b)(3). It stated that while the employer bore the burden of establishing an exemption under California law, the plaintiff had the burden to establish the elements of Rule 23. In particular, it rejected the plaintiff’s reliance on what he claimed were centralized control and uniform policies. Interestingly, it also refused to rely on an annual survey UPS itself had conducted because it had not used a reliable methodology.
Marlo’s individual claims were tried and, following a nine-day trial, the jury found in Marlo’s favor on some, but not all claims. Both sides appealed.
The Ninth Circuit affirmed the decisions below. As to certification decision, the Ninth Circuit held that the district court did not abuse its discretion in decertifying the class and did not, by evaluating the existence of common proof, improperly weight the evidence as to the merits. After nine years of litigation, the individual plaintiff prevailed, but there was no class-wide determination.
The Bottom Line: Wage and hour class actions can take on a life of their own. Individual differences among employees will still defeat certification, even when the named plaintiff’s claims are found to have merit.