Parra, et al v. Bashas' Inc

Filing 308

ORDER granting 159 Motion for Class Certification to the extent they are seeking certification of a class with respect to pay pursuant to Fed.R.Civ.P. 23(b)(3). In that regard, the court certifies a class as follows: All Hispanic workers currently and formerly employed by defendant Bashas' Inc. in an hourly position at any Food city retail store since April 4, 1998, who have been subject to the challenged pay policies and practices. FURTHER ORDERED that the working conditions claim is D ECERTIFIED; and FINALLY ORDERED that in conformity with Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the date of entry of this order, the parties shall submit jointly an agreed upon form of notice, a joint proposal for dissemination of the notice, and the time-line for opting out of the action. Plaintiffs must bear the costs of the notice, which shall include mailing by first-class mail. Signed by Senior Judge Robert C Broomfield on 5/31/13. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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José Parra, Gonzalo Estrada,
and Aurelia Martinez,

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Plaintiffs,

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vs.
Bashas’, Inc.

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Defendant.

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No. CIV-02-0591-PHX-RCB
O R D E R

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Introduction

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More than a decade ago, current and former Hispanic1

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employees of defendant Bashas’, Inc. filed this action

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alleging race and national origin discrimination in violation

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of Title VII of the 1964 Civil Rights Act as amended (“Title

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VII”), 42 U.S.C. § 2000e, et seq.,

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and disparate treatment, and intentional race discrimination

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in violation of 42 U.S.C. § 1981.

for both disparate impact

Plaintiffs allege that

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Plaintiffs interchangeably refer to themselves as “Latino” or
“Hispanic.” For the sake of uniformity, and because plaintiffs primarily
refer to themselves as Hispanics so too will this court.

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Bashas’ has discriminated against them with respect to pay

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and working conditions.

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certification of a pay class, but granted certification as to

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the working conditions claim.

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WL 6182338 (D. Ariz. 2005) (“Parra I”).

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years, for a host of reasons recounted below, this action has

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not moved beyond the class certification stage.

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before the court is the most recent permutation of the class

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certification issue.

In 2005, this court denied

Parra v. Bashas’, Inc., 2005
In the ensuing

Pending

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Background

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Bashas’ Inc. operates three grocery store chains with

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three different formats and monikers:

A.J.’s Fine Foods

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(“A.J.’s”); (2) Bashas’; and (3) Food City.

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class action, named plaintiffs Gonzalo Estrada, 2 a Hispanic

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former Food City hourly employee, and Aurelia Martinez, a

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Hispanic current Food City hourly employee, 3 allege that

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Bashas’ pays its “predominantly” Hispanic Food City

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employees, less than it pays “the Caucasian employees at

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A.J.’s Fine Foods and Bashas’ for performing the same work.”

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First Amended Complaint (“FAC”) (Doc. 116) at 1:26-2:2, ¶ 1

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(“the pay claim”).

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City Hispanic employees “are required to work under

In this putative

Plaintiffs further allege that the Food

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As part of their motion for class certification, plaintiffs have
submitted numerous declarations from current and former Hispanic hourly
Food City employees.
José Agapito Perez Estrada provided one such
declaration. To clarify, all references herein to Estrada are to the named
plaintiff, Gonzalo Estrada.
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Originally, José Parra also was a named plaintiff, but he has
since withdrawn, although he remains a member of the putative class. See
Parra I, 2005 WL 6182338, at *17 n. 31.

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conditions that are typically less safe and less hygienic

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than the conditions found at A.J.’s . . . and Bashas’.”

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at 2:2-4, ¶ 1 (“the working conditions claim”).

Id.

In Parra I, this court granted plaintiffs’ motion for

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class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to

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the working conditions claim, but denied certification of the

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pay claim, because there was not “sufficient commonality

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among the class members” as to the latter claim.

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2005 WL 6182338, at *16.

Parra I,

Commonality, as Rule 23(a)(2)

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requires for all class actions, was lacking because, as the

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parties conceded, “the contested pay scales ha[d] merged and,

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for the most part, are now identical.”

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omitted).

Id. at *15 (citations

On appeal, the Ninth Circuit faulted this court for

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“only look[ing] at the current pay scales.”

Parra v.

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Bashas’, Inc., 536 F.3d 975, 979 (9 th Cir. 2008) (“Parra II”),

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cert. denied, Bashas’, Inc. v. Parra, 555 U.S. 1154, 129

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S.Ct. 1050, 173 L.Ed.2d 470 (2009).

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have “consider[ed] the evidence of past pay disparities and

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discrimination common to the Hispanic workers at Food City.”

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Id.

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the “pay scales were common for all Bashas’, Inc. employees

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and provided for different pay for similar jobs based only on

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where the employee worked.”

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Circuit pointed out that “[t]he class definition seeks to

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reach those Hispanic employees who suffered past

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discrimination under th[o]se pay scales.”

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added). Given plaintiffs’ “extensive evidence showing

This court also should

Taking that evidence into account, the Court found that

Id.

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Additionally, the Ninth

Id. (emphasis

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Bashas’, Inc.’s discriminatory pay practices commonly

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affected all members of the proposed class[,]” the Ninth

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Circuit reversed this court’s commonality finding and

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remanded, instructing it to “consider[] . . . the remaining

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class certification factors[.]”

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Id. at 979-980.

Thereafter, the issue of class certification as to the

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pay claim was in a state of legal limbo for quite a while.

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Bashas’ filing of a voluntary Chapter 11 bankruptcy petition

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resulting in an automatic statutory stay, heavily contributed

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to that state, as did this court’s decision to “defer

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resolution of the class certification issue pending a

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decision” in

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(9th Cir. 2010) (“Dukes II”) (en banc), cert. granted, ---

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U.S. ---, 131 S.Ct. 795, 178 L.Ed.2d 530 (2010).

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295) at 2:14-15 (citation omitted).

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deferral “rather than deciding the case in haste without the

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benefit of the Supreme Court’s decision in Dukes[.]” Id. at

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2:13-14.

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Wal-Mart Stores, Inc. v. Dukes, 603 F.3d 571

Ord. (Doc.

This court opted for

Nearly three years after Parra II, the Supreme Court

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rendered its decision in Wal-Mart Stores, Inc. v. Dukes, 564

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U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (“Dukes”).

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Vacating certification of a class estimated to include 1.5

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million female current or former Wal-Mart employees,

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Supreme Court held, inter alia, that plaintiffs did “not

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establish[] the existence of any common question[,]” as Rule

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23(a)(2) requires.

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accordance with this court’s order, the parties then

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simultaneously filed supplemental briefs and replies with

Id. at 2557 (footnote omitted).

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the

In

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respect to the potential impact of Dukes upon the present

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case.

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respect to plaintiffs’ 2004 motion for class certification, 4

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their positions during oral argument thereon, and the

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parties’ supplemental Dukes briefs, replies and other

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filings, the court finds as follows.

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Discussion
Originally, plaintiffs sought class certification

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After considering all of the submissions filed with

pursuant to Fed.R.Civ.P. 23(b)(2) as to both the pay and the

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working conditions claims; and in Parra I, this court

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confined its analysis accordingly.

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Dukes, the plaintiffs are seeking certification of the pay

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claim pursuant to Fed.R.Civ.P. 23(b)(3).

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in light of Dukes, Bashas’ is requesting that this court

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reconsider its decision certifying the working conditions

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claim, and decertify that claim.

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myriad of issues surrounding class certification as to each

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of these two claims separately, beginning with the pay claim.

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But first, the court will outline the legal framework for its

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analysis.

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I.

Now, however, in light of

Furthermore, also

The court will address the

Class Certification Legal Framework
Rule 23 “give[s] the district court broad discretion

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over certification of class actions[.]”

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Ticketmaster Corp., 655 F.3d 1013, 1019 (9 th Cir. 2011).

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Stearns v.

In 2004, the class certification motion, the response, the reply
and some supporting documentation were all filed under seal. Given “the
extreme passage of time[,]” as Bashas’ notes, “much of the information no
longer is sensitive.” Defs.’ Supp. Br. (Doc. 301) at 2:25, n. 1. Thus, to
the extent the parties have relied upon any sealed documents, so, too has
the court.

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However, class certification remains “‘an exception to the

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usual rule that litigation is conducted by and on behalf of

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the individual named parties only.’” Comcast Corp. v.

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Behrend, --- U.S. ----, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515

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(2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701,

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99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)).

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departure from that rule, a class representative must be part

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of the class and possess the same interest and suffer the

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same injury as the class members.”

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“[T]o justify a

Dukes, 131 S.Ct. at 2550

(internal quotation marks and citations omitted).
The Dukes Court made clear that “Rule 23 does not set

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forth a mere pleading standard.”

Dukes, 131 S.Ct. at 2551.

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Therefore, “a party seeking to maintain a class action ‘must

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affirmatively demonstrate . . . compliance’ with Rule 23.”

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Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551-

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2552).

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that there are in fact sufficiently numerous parties, common

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questions of law or fact,’ typicality of claims or defenses,

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and adequacy of representation, as required by Rule 23(a).” 5

That means, “a party must . . . ‘be prepared to prove

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“The Supreme Court . . . has yet to decisively attach a standard
of proof to Rule 23 requirements[,]” Keegan v. American Honda Motor Co.,
284 F.R.D. 504, 521 n. 83 (C.D.Cal. 2012) (internal quotation marks and
citation omitted), even after its two most recent class action decisions,
Amgen Inc. v. Conn. Ret. Plans and Trust Funds, --- U.S. ----, 133 S.Ct.
1184, 185 L.Ed.2d 308 (2013), and Comcast. Similarly, the Ninth Circuit
has not yet been squarely confronted with this burden of proof issue.
Among the Circuit Courts to have addressed the issue, a consensus is
emerging around the “preponderance of the evidence” standard. See, e.g.,
Levitt v. J.P. Morgan Securities, Inc., 710 F.3d 454, 465 (2nd Cir. 2013)
(internal quotation marks and citation omitted) (emphasis added) (“The Rule
23 requirements must be established by at least a preponderance of the
evidence.”); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811
(7th Cir. 2012) (citations omitted) (“Plaintiffs bear the burden of showing
that a proposed class satisfies the Rule 23 requirements, . . . , but they
need not make that showing to a degree of absolute certainty. It is

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Id.

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original).

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limit[s] . . . class claims to those fairly encompassed by

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the named plaintiff’s claims.” Dukes, 131 S.Ct. at 2550

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(internal quotation marks and citations omitted).

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(quoting Dukes, 131 S.Ct. at 2551) (emphasis in
Satisfying those prerequisites, “effectively

When analyzing the propriety of class certification, the

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Supreme Court has “[r]epeatedly . . . emphasized that it

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‘‘may be necessary for the court to probe behind the

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pleadings before coming to rest on the certification

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question,’ and certification is proper only if ‘the trial

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court is satisfied, after a rigorous

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prerequisites of Rule 23(a) have been satisfied.’’” Comcast,

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133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551) (quoting

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in turn General Telephone Co. of Southwest v. Falcon, 457

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U.S. 147, 160–161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

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The exact contours of a “rigorous analysis,” as well as the

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extent to which courts may “probe behind the pleadings[,]” is

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still evolving.

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analysis “will frequently entail ‘overlap with the merits of

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the plaintiff’s underlying claim.’”

analysis, that the

What is certain though is that a rigorous

Id. (quoting Dukes, 564

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sufficient if each disputed requirement has been proven by a preponderance
of evidence.”); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320
(3d Cir. 2008) (“a district court exercising proper discretion in deciding
whether to certify a class will resolve factual disputes by a preponderance
of the evidence and make findings that each Rule 23 requirement is met or
is not met[]”). However, that view is not universally held. See Gooch v.
Life Investors, Co. of Am., 672 F.3d 402, 418 n. 8 (declining
“preponderance of the evidence” standard for the “rigorous analysis”
mandated by Dukes and Falcon).
Absent specific guidance from the Supreme Court or the Ninth Circuit,
the court, “see[s] no reason to superimpose a more specific standard than
the Supreme Court[.]” See Gooch, 672 F.3d at 418 n. 8. This is especially
so because “factual issues are not in play[]” in that Bashas’ concessions
provide the primary factual basis, at least with respect to plaintiffs’ pay
claim. See id.

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U.S. at ----, 133 S.Ct. at 2551).

“That is so because the

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‘class determination generally involves considerations that

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are enmeshed in the factual and legal issues comprising the

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plaintiff’s cause of action.’” Id.

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at ----, 131 S.Ct. at 2551) (other quotation marks and

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citation omitted).

(quoting Dukes, 564 U.S.,

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Post-Dukes, the Ninth Circuit has stressed that “a

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district court must consider the merits if they overlap with

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the Rule 23(a) requirements.”)

Ellis v. Costco Wholesale

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Corp., 657 F.3d 970, 981 (9 th Cir. 2011) (“Ellis I”) (emphasis

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in original) (citations omitted).

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has recently cautioned that “Rule 23 grants no license to

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engage in free-ranging merits inquiries at the certification

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stage. Merits questions may be considered to the extent – but

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only to the extent - that they are relevant to determining

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whether the Rule 23 prerequisites for class certification are

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satisfied.”

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133 S.Ct. 1426.

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certification into a mini-trial.”

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n. 8.

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certification proceedings into a dress rehearsal for the

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trial on the merits.”

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HealthSystem, 669 F.3d 802, 811 (7 th Cir. 2012) (citations

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omitted).

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Indeed, the Supreme Court

Amgen, 133 S.Ct. at 1194-95; see also Comcast,
“To hold otherwise would turn class
Ellis I, 657 F.3d at 983

This court thus will “not turn the[s]e class

See Messner v. Northshore University

That said, neither “the possibility that a plaintiff

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will be unable to prove his allegations, nor the possibility

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that the later course of the suit might unforeseeably prove

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the original decision to certify the class wrong, is a basis

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for declining to certify a class which apparently satisfies

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[Rule 23].”

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Manufacturing Energy, Allied Industrial & Service Workers

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International Union v. ConocoPhillips Co., 593 F.3d 802, 809

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(9th Cir. 2010).

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Rule 23(a) remains . . . indispensable.”

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161.

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“unquestioningly accept a plaintiff’s arguments as to the

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necessary Rule 23 determinations.”

United Steel, Paper & Forestry, Rubber,

“[A]ctual, not presumed, conformance with
Falcon, 457 U.S. at

Consequently, “a court is not required to

Gonzales v. Comcast

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Corp., 2012 WL 10621, at *9 (E.D.Cal. Jan. 3, 2012) (internal

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quotation marks and citation omitted), adopted in full, 2012

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WL 217708 (E.D.Cal. Jan. 23, 2012).

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Once all four prerequisites of Rule 23(a) are shown,

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“the party must also satisfy through evidentiary proof at

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least one of the provisions of Rule 23(b).”

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S.Ct. at 1432.

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is subsection three, which requires a court to find that “the

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questions of law or fact common to class members predominate

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over any questions affecting only individual members.”

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Fed.R.Civ.P. 23(b)(3).

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expressly held that “[t]he same analytical principles[,]”

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outlined above, requiring a rigorous analysis and “frequently

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entail[ing] some overlap with the merits[,] . . . govern Rule

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23(b).”

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These principles form the backdrop for the pending issue of

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whether to certify a class as to plaintiffs’ pay claim, and

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also whether to decertify the class as to their working

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conditions claim.

Comcast,

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In the present case, the provision at issue

Leaving no doubt, the Comcast Court

Comcast, 133 S.Ct. at 1432 (citation omitted).

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II.

Pay Claim
A.

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Fed.R.Civ.P. 23(a)
Numerosity

Numerosity, the first prerequisite for class

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certification under Rule 23(a), is shown when “the class is

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so numerous that joinder of all members is impracticable.”

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Fed.R.Civ.P. 23(a)(1). In Parra I, Bashas’ did not contest

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certification based upon a lack of numerosity, and the

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putative class has

“thousands of members[.]” See Parra I,

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2005 WL 6182338, at *14 (citations omitted).

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thus have readily shown numerosity.

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did not contest numerosity on appeal, nor does Bashas’ raise

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that issue now, the court adheres to that earlier finding.

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Consequently, the court is free to turn to the vigorously

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disputed issue of whether, in the wake of Dukes, plaintiffs

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have met their burden of showing commonality as to their pay

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claim.

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2.

The plaintiffs

Further, because Bashas’

Commonality

The second requirement under Rule 23(a) is the existence

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of “questions of law or fact common to the class[.]”

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Fed.R.Civ.P. 23(a)(2).

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“[t]he crux” of

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case, the parties strenuously disagree as to the

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applicability of Dukes, especially given the procedural

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posture of this case -- on remand after a finding of

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commonality.

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restated the standard for establishing commonality[.]” Def.’s

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Resp. (Doc. 304) at 5:20, n. 1 (citations omitted).

Commonality under that Rule was

Dukes, 131 S.Ct. at 2550.

In the present

From Bashas’ perspective, Dukes “substantially

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Strongly

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implying that because Dukes constitutes an intervening change

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in law, Bashas’ further argues that “[n]either the law of the

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case doctrine nor the mandate rule” require this court to

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abide by the Ninth Circuit’s finding of commonality in Parra

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II.

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Dukes “it is not only proper but necessary [for this court]

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to revisit Plaintiffs’ ability to show commonality.”

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5:23, n. 1.

Id. at 5:19, n. 1.

Hence, Bashas’ believes that after

Id. at

To the contrary, plaintiffs argue that the Ninth

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Circuit’s finding of commonality in Parra II “is unaffected”

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by Dukes. Pls.’ Supp. Br. (Doc. 302) at 16:11.

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plaintiffs assert that Bashas’ is “effect[ively] . . .

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urg[ing] this Court to ignore the mandate of the Ninth

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Circuit.”

Pls.’ Reply (Doc. 303) at 6:5-6 (citation

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omitted).

Skirting the critical issue of whether Dukes

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amounts to a change in controlling law,

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observe that the Parra II Court “did not rely on any of the

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Ninth Circuit’s rulings in Wal-Mart, now reversed by the

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Supreme Court[”] in Dukes.

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true,6 it does not necessarily follow that because of that

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Dukes is not an intervening change in law, as plaintiffs

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suggest.

Therefore,

plaintiffs first

Id. at 16:12-13.

While obviously

Plaintiffs add that Dukes and the present case “raise

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different commonality issues.”

Id. at 16:14.

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is so, it also does not necessarily follow therefrom that

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Dukes does not constitute an intervening change in law.

Assuming that

Put

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Given that Parra II was decided in 2008, it would have been
impossible for that Court to have relied upon the Ninth Circuit’s 2010
Dukes decision.

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differently, it is possible that Dukes is an intervening

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change in law, regardless of the nature of the commonality

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issues.

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in this case is precisely the kind of ‘specific employment

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practice’ found lacking by the Supreme Court in [Dukes].”

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Id. at 16:19-21.

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the change in law issue.

Plaintiffs’ final response is that “the policy issue

a. Law of the Case/Rule of Mandate

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Still, this is not directly responsive to

It is well settled in this Circuit that “‘[w]hen a case

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has been decided by an appellate court and remanded, the

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court to which it is remanded must proceed in accordance with

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the mandate and such law of the case as was established by

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the appellate court.’” United States v. Luong, 627 F.3d 1305,

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1309 (9th Cir. 2010) (quoting Firth v. United States, 554 F.2d

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990, 993 (9th Cir. 1977)). Pursuant to the law of the case, “a

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court will generally refuse to reconsider an issue that has

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already been decided by the same court or a higher court in

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the same case.”

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(9th Cir. 2012) (citation omitted) (en banc), cert. granted, -

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-- U.S. ----, 133 S.Ct. 476, 184 L.Ed.2d 296 (2012).

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law of the case doctrine applies when, inter alia, “the issue

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in question [was] decided explicitly . . . in the previous

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disposition.”

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(9th Cir. 2007).

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whether plaintiffs met Rule 23(a)(2)’s commonality standard –

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was explicitly decided in Parra II.

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the Ninth Circuit’s finding of commonality in Parra II would

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have been binding upon this court, and the law of the case

Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4

The

United States v. Thrasher, 483 F.3d 977, 981
Plainly, “the issue in question” here –

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Thus, prior to Dukes,

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doctrine would have barred reconsideration of that issue on

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remand.

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The same result holds true with respect to the rule of

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mandate, which “is similar to, but broader than, the law of

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the case doctrine.”

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and citation omitted).

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emphasized that when acting under an appellate court’s

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mandate, an inferior court ‘cannot vary it, or examine it for

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any other purpose than execution; or give any other or

See id. at 982 (internal quotation marks
“The Supreme Court long ago

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further relief; or review it, even for apparent error, upon

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any matter decided upon appeal; or intermeddle with it,

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further than to settle so much as has been remanded.’”

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Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9 th Cir.

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1984) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247,

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255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)).

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Dukes, the rule of mandate would have deprived this court of

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jurisdiction to revisit on remand the Parra II commonality

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finding.

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marks and citation omitted) (“[I]f a district court errs by

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violating the rule of mandate, the error is a jurisdictional

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one[.]”) That is so because in reversing this court’s

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“finding that Plaintiffs’ originally proposed class lacked

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commonality under Rule 23(a)(2),” the Ninth Circuit

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explicitly remanded “for consideration of the remaining class

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certification factors in accordance with [its] opinion.”

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Parra II, 536 F.3d at 980 (emphasis added).

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28

Prior to

See Luong, 627 F.3d at 1309 (internal quotation

Importantly, there is some flexibility with respect to
the rule of mandate and law of the case doctrines.

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Indeed,

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Ninth Circuit “cases make clear that the rule of mandate is

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designed to permit flexibility where necessary, not to

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prohibit it.”

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(9th Cir. 2000) (emphasis added).

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has recognized that the “[l]aw of the case should not be

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applied woodenly in a way inconsistent with substantial

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justice.”

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Cir. 1987); see also Yankee Atomic Electric Co. v. United

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States, 679 F.3d 1354, 1360 (Fed. Cir. 2012) internal

U.S. v. Kellington, 217 F.3d 1084, 1095 n. 12
The Ninth Circuit likewise

United States v. Miller, 822 F.2d 828, 832-33 (9 th

10

quotation marks and citations omitted) (“An appellate mandate

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does not turn a district judge into a robot, mechanically

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carrying out orders that become inappropriate in light of

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subsequent factual discoveries or changes in the law.”)

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Given that inherent flexibility, there are exceptions

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warranting a departure from the law of the case and rule of

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mandate doctrines.

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discretion to depart from the law of the case doctrine based

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upon “intervening controlling authority [which] makes

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reconsideration appropriate[.]”

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682 F.3d 811, 820 (9 th Cir. 2012) (internal quotation marks

21

and citations omitted). Further, because “[t]he mandate rule

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is a subpart of the law of the case doctrine[,]” . . . the

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mandate rule is subject to the same exceptions[]” as the law

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of the case doctrine.

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Co. v. Fraschilla (In re Fraschilla), 235 B.R. 449, 457 (9 th

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Cir. BAP 1999), aff’d, 242 F.3d 381 (9th Cir. 2000) (citing

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Miller, 822 F.2d at 832).

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has identified . . . an intervening change in the law” as one

Among other reasons, a court has

United States v. Jingles,

American Express Travel Related Serv.

Hence, because the “Ninth Circuit

- 14 -

1

of several “circumstances in which the law of the case

2

doctrine,” need not be applied, “by analogy the rule of

3

mandate doctrine[] [also] need not be applied[]” when there

4

has been such a change in the law.

5

2010 WL 4825925, at *5 (C.D.Cal. 2010) (emphasis added)

6

(citing cases).

See

Allen v. Astrue,

7

In the present case, the issue thus becomes whether, as

8

Bashas’ contends, Dukes constitutes an intervening change in

9

the controlling law so as to permit departure from the rule

10

of mandate and law of the case doctrines.

11

235 B.R. at 455 (citing cases)(“[T]rial courts are permitted

12

on remand to consider whether any exceptions to the law of

13

the case doctrine excuse compliance with a determination made

14

by an appellate court.”)

15

the Ninth Circuit sweepingly declared it to be “new precedent

16

altering existing case law[,]” requiring remand to the

17

district court.

18

in Ellis vacated and remanded a grant of class certification

19

in a Title VII action alleging gender discrimination by the

20

defendant employer in its promotion and management practices.

21

Admittedly, the Ellis I Court was not faced with the precise

22

issue before this court: whether Dukes is a change in

23

controlling law so as to permit deviating from the law of the

24

case and rule of mandate doctrines.

25

Circuit’s broad declaration in Ellis I is a strong signal

26

that it views Dukes as changing the legal landscape with

27

respect to class certification.

28

See Fraschilla,

In its first application of Dukes,

Ellis I, 657 F.3d at 974.

The Ninth Circuit

Nonetheless, the Ninth

Reinforcing this view is the Ninth Circuit’s more recent

- 15 -

1

decision in Wang v. Chinese Daily News, Inc., 709 F.3d 829

2

(9th Cir. 2013).

3

defendant had “waived its right to challenge the district

4

court’s commonality finding because its opening brief, filed

5

before . . . Wal-Mart, discussed the existence of common

6

questions only in arguing against Rule 23(b)(3)

7

certification.”

8

the issue of commonality in its discussion of Rule 23(a).”

9

Id.

There, the plaintiffs argued that the

Id. at 833.

The defendant “did not argue

“Generally, an issue is waived when the appellant does

10

not specifically and distinctly argue the issue in his or her

11

opening brief.”

12

omitted).

13

appellate court “may consider new arguments . . . if the

14

issue arises because of an intervening change in law[,]” the

15

Ninth Circuit “conclude[d] that the [Supreme] Court’s

16

decision in Wal-Mart present[ed] a sufficiently significant

17

legal development to excuse any failure of [the defendant] to

18

discuss the commonality requirement of Rule 23(a)(2) in its

19

opening brief.”

Id. (internal quotation marks and citation

However, invoking the settled rule that an

Id.

20

The Ninth Circuit is not alone in its view that Wal-Mart

21

is “new precedent altering existing case law[,]” Ellis I, 657

22

F.3d at 974, or a “significant legal development[.]” See

23

Wang, 709 F.3d at 833.

24

courts within this Circuit, have variously recognized that

25

Dukes: (1) sets forth a “heightened standard of

26

commonality[;]”7 (2) “represents a significant restatement of

Other courts, including district

27
28

7

See Morrison v. Anadarko Petroleum Corp., 280 F.R.D. 621
(W.D.Okla. 2012) (refusing to give preclusive effect to a state court class
certification order because that court “did not apply the heightened

- 16 -

1

the commonality requirement[;]” 8

2

23(a) commonality element; 9 and (4) “undoubtedly increas[es]

3

the burden on class representatives by requiring that they

4

identify how common points of facts and law will drive or

5

resolve the litigation[.]” 10

6

weight of authority, the court is convinced that Dukes

7

represents an intervening change in law.

(3) clarifies the Rule

Partially based upon this

8

Additionally, an independent examination of Dukes

9

further convinces this court that the Supreme Court altered

10

the legal standards for assessing commonality by, among other

11

things, adding an additional level of scrutiny under Rule

12

23(a)(2).

13

“[w]hat matters to class certification . . . is not the

More specifically, Dukes adopted the view that

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

standard of commonality as set forth in Dukes[]”).
8

Walter v. Hughes Communications, Inc., 2011 WL 2650711, at *7
(N.D.Cal. 2011).
9

See, e.g., Ellis I, 657 F.3d at 974 (“Several of the[] issues
[“relating to class certification[]”] have recently been clarified by
Dukes); Ross v. RBS Citizens, N.A., 667 F.3d 900, 902 (7th Cir. 2012)
(“[T]he Supreme Court clarified the Rule 23(a) commonality element in”
Dukes); Sanchez v. Sephora USA, Inc., 2012 WL 2945753, at *3 (N.D.Cal.
2012) (same); In re Wells Fargo Residential Mortg. Lending Discrimination
Litigation, 2011 WL 3903117, at *2 (N.D.Cal. 2011) (same).
This court is keenly aware that in attempting to define what
constitutes an intervening change in controlling law, it has previously
found that “cases which merely confirm, clarify or explain existing case
law” do not amount to such a change.
Teamsters Local 617 Pension and
Welfare Funds v. Apollo Group, Inc., 282 F.R.S. 216, 224 (D.Ariz. 2012).
Significantly, however, in Apollo Group this court was examining what
constitutes an intervening controlling law for purposes of determining
whether to alter or amend a judgment under Rule 59(e), and it limited its
finding accordingly. The interests of finality and conservation, which are
of paramount importance in that context, Carroll v. Nakatani, 342 F.3d 934,
945 (9th Cir. 2003), are not implicated here. Moreover, as can be seen,
clarification is just one of many ways in which courts have described
Dukes’ influence on Rule 23(a)(2)’s commonality standard.
10

Gonzales, 2012 WL 10621, at *10 (citation omitted) (emphasis in

original).

- 17 -

1

raising of common ‘questions’ — even in droves — but, rather

2

the capacity of a classwide proceeding to generate common

3

answers apt to drive the resolution of the litigation.”

4

Dukes, 131 S.Ct. at 2551 (internal quotation marks and

5

citation omitted) (emphasis in original).

6

its discretion, and given “the contours of the situation and

7

common sense[,]” this court finds it appropriate to revisit

8

the commonality issue, notwithstanding the Ninth Circuit’s

9

resolution of that issue in Parra II.11

Consequently, in

Hegler v. Borg, 50 F.3d 1472 (9 th Cir. 1995) (“Hegler

10
11

II”), is closely analogous, and provides additional support

12

for reexamining the commonality issue in light of Dukes.

13

Reversing and remanding, in Hegler v. Borg, 990 F.2d 1258 (9 th

14

Cir. 1993),

15

to determine whether a particular error was harmless beyond a

16

reasonable doubt.

17

the instruction in the mandate because an intervening Supreme

18
19
20
21
22
23
24
25
26
27

the Ninth Circuit instructed the district court

On remand, the district court “disobeyed

11

To a certain extent, the court finds itself in the position, so
aptly described by the Fraschilla court:
In effect, when there has been an intervening
authoritative decision of a higher appellate court
[i.e., Dukes] to which both the lower appellate court
that issued the mandate [i.e., Parra III] and th[is]
trial court owe obedience, then the trial court is
presented with the dilemma of a clash between the
dictates of the doctrine of stare decisis and the
imperative of the mandate rule. The correct choice
depends upon the contours of the situation and common
sense. It is no more comfortable for the trial court than
it is for the private soldier who receives contradictory
orders from the sergeant and the captain or the employee
caught between a middle manager and a top executive.
Fraschilla, 235 B.R. at 458.

28

- 18 -

1

Court decision prescribed a different standard.”

Fraschilla,

2

235 B.R. at 458.

3

agreed that it “must apply intervening Supreme Court

4

authority to a subsequent appeal[]” as an exception to the

5

law of the case doctrine.

6

Therefore, the Hegler II Court “had no difficulty affirming

7

the [district] court[]” despite that court’s disregard of the

8

mandate and the law of the case.

9

458 (citation and footnote omitted).

In Hegler II, another Ninth Circuit panel

Hegler II, 50 F.3d at 1478.

See Fraschilla, 235 B.R. at

10

Southern Oregon Barter Fair v. Jackson County, 372 F.3d

11

1128 (9th Cir. 2004), and Fraschilla, 235 B.R. 449, are also

12

instructive as to when a district court may depart from the

13

mandate and law of the case.

14

that it was not an abuse of discretion to re-examine the

15

merits after the issuance of a preliminary injunction,

16

notwithstanding the law of the case, because an intervening

17

Supreme Court decision “provided important guidance” therein.

18

Barter Fair, 372 F.3d at 1136.

19

In Barter Fair, the Court held

Similarly, in Fraschilla, 235 B.R. 449, the Bankruptcy

20

Appellate Panel (“BAP”) held that although its mandate had

21

directed entry of judgment in plaintiff’s favor, the trial

22

court did not err by subsequently conducting a trial where,

23

following remand, there had been two intervening Ninth

24

Circuit decisions.

25

importance of the other elements of [nondischargeability for]

26

common law fraud.”

27

decision, while “somewhat opaque,” “adjusted the focus” for a

28

finding of nondischargeability, “emphasiz[ing] the need to

One such decision “amplified the

Id. at 456.

- 19 -

The second intervening

1

make an actual finding regarding intent[.]” Id. Those two

2

decisions change[d] the landscape regarding credit card

3

nondischargeability actions . . . alter[ing] the analysis

4

that was applicable when the BAP decided the initial

5

appeal[]” therein.

6

Fraschilla demonstrate, even if an intervening decision does

7

not go so far as to

8

nonetheless, such a decision can warrant a departure from the

9

rule of mandate and law of the case doctrines.

10
11

Id. at 455.

As Barter Fair and

“prescribe a different standard,”

See

Fraschilla, 235 B.R. at 458.
Ultimately, as plaintiffs assert, the Parra II Court’s

12

finding of commonality (as distinguished from its rationale)

13

might be “unaffected.”

14

(citation omitted).

15

that Dukes “does not require a re-examination of [prior]

16

factual findings[] in this case.

17

at 6:8-9 (emphasis added).

18

disregard Dukes, which altered the legal standards for

19

assessing Rule 23(a)(2) commonality.
b.

20
21

Pls.’ Supp. Br. (Doc. 302) at 6:13
It also may be, as plaintiffs assert,

See Pls.’ Reply (Doc. 303)

Nevertheless, this court cannot

Dukes

The Dukes plaintiffs alleged “that the discretion

22

exercised by their local supervisors over pay and promotions

23

matters violate[d] Title VII by discriminating against

24

women.”

25

attempted to demonstrate the common issue of company-wide

26

gender discrimination chiefly through three different “forms

27

of proof[.]” Dukes, 131 S.Ct. at 2549.

28

relied upon “statistical evidence about pay and promotion

Dukes, 131 S.Ct. at 2547.

- 20 -

The Dukes plaintiffs

First, the plaintiffs

1

disparities between men and women at the company[.]” Id.

2

Second, they relied upon “anecdotal reports of discrimination

3

from about 120 of Wal–Mart’s female employees[.]”

4

Third, the plaintiffs relied upon “the testimony of a

5

sociologist, . . . , who conducted a ‘social framework

6

analysis’ of Wal–Mart’s ‘culture’ and personnel practices,

7

and concluded that the company was ‘vulnerable’ to gender

8

discrimination.”

9

nation-wide class, a five justice majority in Dukes held that

Id. (citation omitted).

Id.

In dismantling the

10

plaintiffs did not show commonality because they did not

11

“provide . . . convincing proof of a companywide

12

discriminatory pay and promotion policy[,]” and hence they

13

did “not establish[] the existence of any common question[,]”

14

as Rule 23(a)(2) mandates.

15

Id. at 2556-57.

Summarizing the commonality requirement, Justice Scalia

16

wrote, that it “requires the plaintiff to demonstrate that

17

the class members ‘have suffered the same injury[,]’” not

18

“merely that they have all suffered a violation of the same

19

provision of law.”

20

157, 102 S.Ct. 2364).

21

same injury, plaintiffs’ “claims must depend upon a common

22

contention,” according to the Dukes Court. Id.

23

contention, in turn, “must be of such a nature that it is

24

capable of classwide resolution - which means that

25

determination of its truth or falsity will resolve an issue

26

that is central to the validity of each [claim] in one

27

stroke.”

28

because there was not “some glue holding the alleged reasons

Id.

Id. at 2551 (quoting Falcon, 457 U.S. at
To show that they have suffered the

That common

Such a common contention was missing in Dukes

- 21 -

1

for all [of] those [individual employment] decisions

2

together[.]”

3

it would “be impossible to say that examination of all the

4

class members’ claims for relief will produce a common answer

5

to the crucial question why was I disfavored.”

6

in original).

7

Id. at 2552 (emphasis in original).

Therefore,

Id. (emphasis

Rejecting plaintiffs’ statistical evidence, the Dukes

8

Court found that “[e]ven if . . . taken at face value,” such

9

evidence was “insufficient to establish that [plaintiffs’]

10

theory c[ould] be proved on a classwide basis.”

11

“Merely showing that Wal-Mart’s policy of discretion had

12

produced an overall sex-based disparity does not suffice.”

13

Id. at 2556.

14

proof though was their failure to “identif[y]” [a] ‘specific

15

employment practice’ - - much less one that ties all their

16

1.5 million claims together.”

17

anecdotal evidence in Dukes was similarly defective and “too

18

weak to raise an inference that all the individual,

19

discretionary personnel decisions are discriminatory[,]”

20

because it did not focus on particular Wal-Mart stores.

21

Thus, because the plaintiffs did not provide “convincing

22

proof of a companywide discriminatory pay and promotion

23

policy,” the Dukes Court held that they did “not establish[]

24

the existence of any common question.”

25

omitted).

26
27
28

Id. at 2555.

The “more fundamental” failure in plaintiffs’

c.

Id. at 1255-56.

Plaintiffs’

Id.

Id. (footnote

Analysis

Before considering whether plaintiffs have shown
commonality post-Dukes, it is necessary to clarify the scope

- 22 -

1

of their pay claim.

2

2004, plaintiffs have severely restricted the scope of that

3

claim.

4

pay policy purporting to have “elements of local manager

5

subjectivity[,]” Pls.’ Supp. Br. (Doc. 302) at 18:27, n. 9,

6

the so-called, “Subjective Placement claim[.]” Pls.’ Reply

7

(Doc. 303) at 5:16-17.

8

they “did not pursue that policy on . . . appeal . . . and no

9

longer seek certification of that claim[,]” however.

10

Since seeking class certification in

Originally, plaintiffs’ pay claim had encompassed a

Plaintiffs unequivocally declare that

Pls.’

Supp. Br. (Doc. 302) at 18:27-28, n. 9.
Another component of plaintiffs’ pay claim had been

11
12

Bashas’ alleged failure to pay Sunday premiums to Food City

13

employees.

14

Sunday premiums; and, more importantly, they have not come

15

forth with any factual support for this claim, as Bashas’

16

accurately notes.

17

n. 2 (citation omitted).

18

correctly notes, “[p]laintiffs never raised this [issue]

19

again and neither this Court nor the [Ninth] Circuit . . .

20

addressed it.”

21

therefore, implicitly abandoned the Sunday premiums aspect of

22

their pay claim.

23

be, inaction, plaintiffs’ pay claim now consists solely of

24

what they describe as Bashas’ “written Two-Tiered Wage Scale

25

[(“the wage scale”)][.]” 12

Plaintiffs make only “passing reference” to the

See Def.’s Supp. Br. (Doc. 301) at 2:26,
Furthermore, as Bashas’ also

Id. at 2:27-28, n. 2.

Plaintiffs have,

Through their actions or, as the case may

Pls.’ Reply (Doc. 303) at 5:17-18.

26
27
28

12

Bashas’ twice acknowledges that plaintiffs are challenging its
pay scales. See Def.’s Supp. Br. (Doc. 301) at 9:19-20 (citations omitted)
(emphasis added) (identifying “Bashas’ pay scales[]” as “the actual
employment practice challenged in this case[]”); and id. at 10:19-20
(emphasis added) (defining the “issue at hand[]” as whether the challenged

- 23 -

1

The court will limit its analysis accordingly.
Plaintiffs are pursuing two closely related, although

2
3

not identical, theories of discrimination with respect to

4

Bashas’ wage scales – disparate treatment and disparate

5

impact.13

6

Borrowing from Dukes, plaintiffs assert that they do have a

7

common answer to the “crucial question” posed therein, “[ w]hy

8

was I disfavored?”

9

original).

See Pls.’ Supp. Br. (Doc. 302) at 17:28-18:2.

See Dukes, 131 S.Ct. at 2552 (emphasis in

The common answer, plaintiffs posit, is because

10

Bashas’ “adopted a lower wage scale for predominantly

11

Hispanic Food City employees doing the same work as their

12

white counterparts at Bashas’ and A.J.’s Fine Foods.”

13

Supp. Br. (Doc. 302) at 17:26-28.

Pls.’

Thus, regardless of which

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

pay scales constitute a discriminatory practice[]”). Yet, in its reply
Bashas’ seems to disavow that view, declaring that “[w]hile Plaintiffs
claim to challenge [its] pay scales, in reality, they [are] rely[ing] on
statistically derived average pay differences between Hispanic Food City
employees and their counterparts working in other Bashas’ formats.” Def.’s
Resp. (Doc. 304) at 3:3-5 (emphasis in original). Even assuming arguendo
that is so, it does not change the fact that plaintiffs’ equal pay claim
centers on Bashas’ wages scales themselves.
13

For the most part, the parties have overlooked the distinction
between these two theories. For example, in its reply Bashas’ outlines the
legal framework for a prima facie case of disparate impact, Def.’s Resp.
(Doc. 304) at 4:1-22, but it seems to couch its Dukes-based arguments in
terms of disparate treatment, not disparate impact.
Bashas’ is not alone in this tendency. Even though they are pursuing
both, plaintiffs did not separately analyze disparate impact and disparate
treatment in terms of commonality or otherwise.
Cf. Ellis v. Costco
Wholesale Corp., 285 F.R.D. 492, 510 (N.D.Cal. 2012) (“Ellis II”)
(“[B]ecause there are differences with respect to the way Dukes might be
applied to disparate treatment, as opposed to disparate impact claims, the
Court . . . address[ed] these claims separately[.]”)
Following the
parties’ lead, and without the advantage of their fully briefed views on
this issue, this court, too, will not distinguish between disparate
treatment and disparate impact at this stage. That does not foreclose the
possibility that that distinction will become relevant later in this
litigation.

- 24 -

1

theory their pay claim is grounded upon, plaintiffs contend

2

that they have met Dukes’ commonality standard because

3

“[r]esolution of whether Bashas’ [pay] policy violates Title

4

VII and Section 1981 . . . will resolve the question for all

5

class members.”

6

Id. at 17:23-25.

Bashas’ responds that commonality is lacking because, as

7

in Dukes, the plaintiffs “cannot provide proof of a

8

companywide discriminatory pay practice.”

9

(Doc. 301) at 12:24 (emphasis omitted). Bashas’ further

Def.’s Supp. Br.

10

responds that, also like Dukes, neither plaintiffs’

11

statistical nor their anecdotal evidence suffice to establish

12

commonality.

13

shortcomings in Dukes only serves to lay bare the flaws in

14

Bashas’ commonality analysis, however.

15

assails the evidence of plaintiffs’ statistician, Dr. Richard

16

Drogin, it cannot now distance itself from “three significant

17

. . . conce[ssions]” it made earlier in this litigation.

18

Parra II, 536 F.3d at 979.

19

Ward, an economist and statistician, to refute Dr. Drogin’s

20

statistical analyses.

21

reached by Dr. Drogin:

22
23
24
25
26
27
28

Patterning its argument after the evidentiary

Although Bashas’

See

Bashas’ retained Dr. Michael P.

Dr. Ward

conceded these conclusions

(1) Food City Stores have a higher
percentage of Hispanic employees
compared to Bashas’ or A.J.’s stores,
(2) the pay scales at Bashas’ and A.J.’s
stores were higher than those at Food City
during the period 1998-2000, and (3)
Hispanic employee hourly rates were
lower in similar jobs.
Id.; see also Parra I, 2005 WL 6182338, at *16 (same).
Bashas’ wage scales, in combination with these concessions,
provide the “convincing proof of a companywide discriminatory
- 25 -

1

pay . . . policy” missing from Dukes.

2

at 2556.

3
4

See Dukes, 131 S.Ct.

Indeed, even prior to Dukes, the Ninth Circuit was
similarly convinced, explaining that:
These pay scales were common for all Bashas’,
Inc. employees and provided for different
pay for similar jobs based only on the store
where the employee worked. The proposed class
here shares the alleged discriminatory pay
scales of Bashas’, Inc. The class definition
seeks to reach those Hispanic employees who
suffered past discrimination under these pay
scales.

5
6
7
8
9
10

Parra II, 536 F.3d at 979.

11

Bashas’ assertion that

12

because Dr. Drogin “fail[ed] to “identify . . . a ‘specific

13

employment practice’ or one that impacts all of the

14

individuals in the proposed class.”

15

301) at 10:24-26 (citing Dukes, 131 S.Ct. at 2555).

16

The foregoing seriously erodes

plaintiffs have not shown commonality

Def.’s Supp. Br. (Doc.

Relatedly, the foregoing also deeply undercuts Bashas’

17

bald assertion that commonality is lacking because the

18

plaintiffs cannot show that they “‘have suffered the same

19

injury[.]’” Def.’s Supp. Br. (Doc. 301) at 9:14-15 (quoting

20

Dukes, 131 S.Ct. at 2551) (emphasis added by Bashas’).

21

putative class members have suffered the same injury: they

22

received lower wages than their Caucasian counterparts at

23

A.J.’s and Bashas’ stores at least “during the period 1998-

24

2000[]” when, it is undisputed, that “the pay scales at

25

Bashas’ and A.J.’s stores were higher than those at Food

26

City[.]”

27

[Bashas’] pay scales, the hourly pay disparities for

28

comparable jobs at the three brand named stores ranged from

The

See Parra II, 536 F.3d at 977 (“according to

- 26 -

1

$0.15 per hour to $2.94 per hour[,]” which “translate to

2

annual salary differences of around $300 per year to almost

3

$6,000 per year[]”).

4

claim by [current and former Food City] employees that they

5

have suffered a Title VII injury, or even a disparate-impact

6

Title VII injury[.]”

7

as is evident, plaintiffs’ pay claims can “productively be

8

litigated at once.”

9

Thus, unlike Dukes, this is not a “mere

See Dukes, 131 S.Ct. at 2551. Rather,

See id.

In addition, Bashas’ attacks on plaintiffs’ statistical

10

evidence are largely immaterial because they are directed

11

primarily at Dr. Drogin’s regression analyses, which

12

plaintiffs offered to support their “Subjective Placement

13

claim[]” – a claim they are no longer pursuing.14

14

Br. (Doc. 303) at 7:1-2 (footnote omitted).

15

better with its attacks on plaintiffs’ anecdotal evidence –

16

declarations from 13 former and current Bashas’ employees. As

17

with their statistical evidence, Bashas’ contends that

18

plaintiffs cannot establish commonality because, their

19

anecdotal evidence, inter alia, does not “provide

20

‘significant proof’ that [Bashas’] operated under a general

21

policy of discrimination[.]’” Def.’s Supp. Br. (Doc. 301) at

22

11:9-10 (quoting Dukes, 131 S.Ct. at 2553).

23

counter, and the court agrees, that their anecdotal evidence

24

is “unnecessary to establish commonality[,]” Pls.’ Reply

25

(Doc. 303) at 7:15 (emphasis omitted), given the “three

Pls.’ Reply

Bashas’ fares no

Plaintiffs

26
27
28

14

Given the simultaneous filing of the opening post-Dukes briefs,
Bashas’ cannot be faulted in its opening brief for concentrating on its
perceived deficiencies in Dr. Drogin’s analyses. Bashas’ had no way of
knowing when it filed that brief, that plaintiffs would be abandoning their
Subjective Placement claim.

- 27 -

1

significant conclusions conceded by Bashas’” and identified

2

above.

See Parra II, 536 F.3d at 979.

Of equal import is that Bashas’ written, non-

3
4

discretionary, centralized wage scale under which, as

5

plaintiffs allege and the evidence indicates, Hispanic Food

6

City hourly employees were paid less than their Caucasian

7

counterparts at Bashas’ and A.J.’s stores, is precisely what

8

was missing in Dukes.

9

(emphasis added) (“These plaintiffs . . . do not allege that

See Dukes, 131 S.Ct. at 2548

10

Wal-Mart has any express corporate policy against the

11

advancement of women.”)

12

‘glue’ the Supreme Court sought — but did not find — in

13

Dukes, sufficient to ‘say that examination of all the class

14

members’ claims for relief will produce a common answer to

15

the crucial question why was I disfavored.”

16

F.R.D. at 530 (emphasis in original) (quoting Dukes, 131

17

S.Ct. at 2552).

Bashas’ wage scales “provide the

Ellis II, 285

So, for example, if a trier of fact finds that Bashas’

18
19

wage scales “lead to disparate outcomes[,]” that “is a common

20

question subject to classwide proof and rebuttal.” See id. at

21

531.

22

falsity” of whether Bashas’ wage scales violate Title VII or

23

section 1981 in the manner alleged “will resolve in one

24

stroke[]” an issue that is “central to the validity” of each

25

class member’s pay claim.

26

also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015,

27

1029 (9th Cir. 2012) (quoting Dukes, 131 S.Ct. at 2551) (claim

28

that defendant violated the Fair Debt Collection Practices

In the parlance of Dukes, determining the “truth or

See Dukes, 131 S.Ct. at 2551; see

- 28 -

1

Act by sending “collection notices addressed to the debtor,

2

but in ‘care of’ the debtor’s employer, without first

3

obtaining consent[,] . . . is a common contention among the

4

class and ‘determination of its truth or falsity’ is pivotal

5

to this lawsuit and is capable of determination ‘in one

6

stroke[]’”).

7

claim is concerned, “presents the classic case for treatment

8

as a class action: that is, the commonality linking the class

9

members is the dispositive question in the lawsuit.”

“This case,” at least insofar as the equal pay

See

10

Evon, 688 F.3d at 1030 (internal quotation marks and citation

11

omitted).

12

Notably, “commonality only requires a single significant

13

question of law or fact.’”

Mazza, 666 F.3d at 589 (quoting

14

Dukes, 131 S.Ct. at 2556) (emphasis added).

15

plaintiff’s burden at this stage is that Rule 23(a)(2)’s

16

commonality requirement is to be “construed permissively, and

17

“[a]ll questions of fact and law need not be common to

18

satisfy the rule.”

19

quotation marks and citation omitted); see also Evon, 688

20

F.3d at 1030 (internal quotation marks and citation omitted)

21

(“It is not necessary that members of the proposed class

22

share every fact in common.”) Plaintiffs thus have a “limited

23

burden under Rule 23(a)(2)[.]” Mazza, 666 F.3d at 589.

24

Consequently, even in the wake of Dukes, for the reasons

25

outlined above, this court has little difficulty finding that

26

a class proceeding herein has “the capacity to generate

27

common answers apt to drive the litigation” insofar as the

28

equal pay claim is concerned.

Further easing a

Ellis I, 657 F.3d at 981 (internal

See Dukes, 131 S.Ct. at 2551

- 29 -

1

(internal quotation marks and citation omitted) (emphasis in

2

original); see also Gales v. Winco Foods, 2011 WL 3794887, at

3

*2 (N.D.Cal. Aug. 26, 2011)(finding commonality where

4

plaintiff identified an employer’s policy of exempting from

5

overtime all assistant managers).

6

is necessary to determine whether Bashas’ wage scales violate

7

federal law.

No individualized inquiry

8

While not alone dispositive, the difference in scale

9

between Dukes further underscores why Dukes does not preclude

10

a finding of commonality here.

11

expansive class actions ever[,]” comprised of approximately

12

1.5 million members.

Dukes, 131 S.Ct. at 2547.

13

the Dukes plaintiffs

“held a multitude of different jobs, at

14

different levels of Wal–Mart’s hierarchy, for variable

15

lengths of time, in 3,400 stores, sprinkled across 50 states,

16

with a kaleidoscope of supervisors (male and female), subject

17

to a variety of regional policies that all differed.”

18

(internal quotation marks and citation omitted).

19

Additionally, the plaintiffs in Dukes were challenging

20

“literally millions of employment decisions.”

21

2556 n. 9.

22

with Judge Sand’s astute observation in Chen-Oster v.

23

Goldman, Sachs & Co., 2012 WL 2912741 (S.D.Cal. July 17,

24

2012):

25
26
27
28

Dukes was “one of the most

Moreover,

Id.

Id. at 2552,

Given this factual scenario, the court agrees

The Supreme Court suggested (when
not explicitly stating) that the sheer
size of the class and the vast number
and diffusion of challenged employment
decisions was key to the commonality
decision. This makes a great deal of sense
when the purpose of the commonality enquiry
is to identify ‘some glue holding the
- 30 -

alleged reasons for all of [the
challenged] employment decisions together.’

1
2
3

Id. at *3 (quoting Dukes, 131 S.Ct. at 2552 (emphasis

4

omitted)).
The present case is vastly different.

5

There are not

6

millions of potential plaintiffs here.

Nor are the

7

plaintiffs scattered across the nation; they all work or

8

worked at Arizona Food City stores. And, they are not

9

challenging “millions of employment decisions;” rather, at

10

this point, they are only challenging Bashas’ decision to pay

11

its employees pursuant to its two-tiered wage scales.

12

factual distinctions reinforce this court’s conclusion that

13

plaintiffs have met their burden of showing commonality as to

14

the equal pay claim.

15

3.

These

Typicality15

16

Next, plaintiffs must show that “the claims or defenses

17

of the representative parties [are] typical of the claims or

18

defenses of the class.”

19

argues that the claims of named plaintiffs Estrada and

20

Martinez are not typical of those of the putative class

21

because there is no evidence of a shared “common

22

experience[.]” Bashas’ Response to Motion for

Fed. R. Civ. P. 23(a)(3). Bashas’

Class

23
24
25
26
27
28

15

In Parra I, this court addressed typicality, but only with
respect to the working conditions claim. Indeed, after finding a lack of
commonality as to the equal pay claim, the court explicitly noted that it
had “not reached the other requirements for class certification on this
[equal pay] issue, and express[ed] no opinion on whether Plaintiffs could
satisfy” the requirements of typicality and adequacy as to that claim.
Parra I, 2005 WL 6182338, at *16, n. 30 (emphasis added). Moreover, given
the Ninth Circuit’s remand, as earlier noted, “for consideration of the
remaining class certification factors[,]” undeniably the issue of whether,
inter alia, plaintiffs have shown typicality as to their pay claim is
properly before the court now.

- 31 -

1

Certification (“Def.’s Resp. MCC”) (Doc. 190) at 45:9.

As

2

to plaintiff Martinez alone, Bashas’ argues that because she

3

works as a Food City Tortilla Ria Clerk, and that position

4

has “no comparable position in Bashas’ or A.J.’s stores[,]”16

5

her pay claim is “unique to her,” and thus not typical for

6

Rule 23(a)(3) purposes.

7

61:12.

8

did not exhaust her administrative remedies, that is a

9

defense unique to her, thus precluding a finding that she is

Id. at 59:21 (footnote omitted); and

Bashas’ also argues that because plaintiff Martinez

10

a typical class representative.17

11

arguments pertaining solely to plaintiff Martinez first.
a.

12

The court will address the

Aurelia Martinez

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

16

Some preliminary clarification is necessary. Bashas’, like the
plaintiffs, declares that plaintiff Martinez has worked in “one position,
tortilleria [sic] clerk, since 1991.”
Def.’s Resp. MCC (Doc. 190) at
59:18-21 (emphasis in original) (citation omitted); Plaintiffs’ Motion for
Class Certification (“Pls.’ MCC”) (Doc. 159) at 14:23, ¶ 12 (citation
omitted) (“Aurelia Martinez has been employed as a tortilleria [sic] clerk
at a Food City store in Phoenix since July 1991.”) The record belies this
statement, revealing that Ms. Martinez worked both as a Tortilla Ria Clerk
and as Tortilla Machine Operator.
This is noteworthy
because a basic
tenet of Bashas’ argument that plaintiff Martinez’s pay claim is atypical
is that she works, and has always worked, as a Tortilla Ria Clerk.
From Bashas’ Payroll Status Authorization form, it appears, however,
that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla
Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless
of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance
Evaluation form shows that she held that position at least from January,
So although there is
2001 to January, 2002.
Id., exh. B thereto.
uncertainty on this record as to exactly when Ms. Martinez first became
employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine
Operator, clearly she held both positions at different times during the
class period. However, because the parties’ are focusing exclusively upon
Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court.
17

Like commonality, typicality “tend[s] to merge with the adequacySo
of-representation requirement[.]” Dukes, 131 S.Ct. at 2551 n. 5.
although Bashas’ presents these arguments when discussing adequacy, the
court will address them now – in the context of typicality. Cf. Ellis I,
657 F.3d at 974 (citation omitted) (vacating “ruling as to ‘typicality’
. . . because the district court failed to consider the effect that
defenses unique to the named Plaintiffs’ claims have on that questions[]”).

- 32 -

An integral part of Bashas’ exhaustion argument is that

1
2

because Ms. Martinez’s pay claim is unique, plaintiff

3

Estrada’s Equal Employment Opportunity Commission (“EEOC”)

4

charge, among others, did not provide Bashas’ with adequate

5

notice of her pay claim.

6

exhaustion argument per se, the court first must decide

7

whether plaintiff Martinez’s pay claim is unique.
i.

8

So before considering Bashas’

“Tortilla Ria Clerk”18

Bashas’ argues that plaintiff Martinez’s pay claim is

9
10

“unique to her[]” because she works as a Food City Tortilla

11

Ria Clerk, and that position has “no comparable position in

12

Bashas’ or A.J.’s stores.”19

13

61:12; and

14

plaintiffs assert that a Tortilla Ria Clerk is the

Def.’s Resp. MCC (Doc. 190) at

59:21 (footnote omitted).

Disagreeing,

15
16
17

18

See, e.g.,

18
19
20
21
22
23
24
25
26
27
28

This designation is taken directly from Bashas’ wage scales.
Def.’s exh. 1 (Proulx Aff.), exh. G thereto at BA 04350.

19

Some preliminary clarification is necessary. Bashas’, like the
plaintiffs, declares that plaintiff Martinez has worked in “one position,
tortilleria [sic] clerk, since 1991.”
Def.’s Resp. MCC (Doc. 190) at
59:18-21 (emphasis in original) (citation omitted); Pls.’ MCC (Doc. 159) at
14:23, ¶ 12 (citation omitted) (“Aurelia Martinez has been employed as a
tortilleria [sic] clerk at a Food City store in Phoenix since July 1991.”)
The record belies this statement, revealing that Ms. Martinez worked both
as a Tortilla Ria Clerk and as Tortilla Machine Operator.
This is
noteworthy
because a basic tenet of Bashas’ argument that plaintiff
Martinez’s pay claim is atypical is that she works, and has always worked,
as a Tortilla Ria Clerk.
From Bashas’ Payroll Status Authorization form, it appears, however,
that in roughly mid-September 2001 Ms. Martinez was promoted to a Tortilla
Machine Operator. Martinez Decl’n (Doc. 163), exh. A thereto. Regardless
of the exact date of Ms. Martinez’s promotion, a Bashas’ Performance
Evaluation form shows that she held that position at least from January,
So although there is
2001 to January, 2002.
Id., exh. B thereto.
uncertainty on this record as to exactly when Ms. Martinez first became
employed as a Tortilla Ria Clerk, and when she became a Tortilla Machine
Operator, clearly she held both positions at different times during the
class period. However, because the parties’ are focusing exclusively upon
Ms. Martinez’s status as a Tortilla Ria Clerk, so, too, will the court.

- 33 -

1

“equivalent” of a Donut Fryer,20 and thus, plaintiff

2

Martinez’s pay claim is typical of the putative class

3

members.

4

Pls.’ Reply (Doc. 207) at 27:9 (citation omitted).

In resolving this dispute, the court is fully aware of

5

its earlier comment that “[w]ithout further information[]” it

6

could not “determine whether Martinez’s position [as a

7

Tortilla Ria Clerk] has a comparable counterpart in

8

Defendant’s other stores.”

9

The court immediately noted, however, that “[r]egardless,

Parra I, 2005 WL 6182338, at *18.

10

Martinez claims she has suffered from the same alleged

11

disparate working conditions as the proposed class members.”

12

Id. (emphasis added).

13

that Ms. Martinez sufficiently satisfie[d] the typicality

14

requirement of Rule 23(a)(3) on that issue[,]” i.e. the

15

working conditions claim.

16

So “[w]hile close,” this court found

Id. (emphasis added).

In Parra I, this court was able to decide the typicality

17

issue as to Ms. Martinez’s working conditions claim without

18

resolving whether a Food City Tortilla Ria Clerk has a

19

“comparable counterpart” in A.J.’s or Bashas’ stores.

20

Therefore, the court’s earlier quoted comment is, at most,

21

non-authoritative dictum, allowing it to visit that issue

22

against the backdrop of plaintiff Martinez’s pay claim.
Probing more deeply into the record, as part of its

23
24
25
26
27
28

20

More recently, plaintiffs took the position that Martinez’s
“position as a tortilla clerk is equivalent to a higher paid position,
donut fryer, in the Bashas’ stores.” Pls.’ Supp. Br. (Doc. 302) at 20:3-4
(emphasis added) (citations and footnote omitted). Plaintiffs’ cites do
not support that proposition, however. Moreover, as Bashas’ pay scales,
among other things, reveal, and as plaintiffs argue above, Bashas’ places
Tortillaria Clerks and Donut Fryers in the same wage bracket, undermining
this assertion that Donut Fryers are in a “higher paid position.”

- 34 -

1

obligation to rigorously analyze whether the prerequisites of

2

Rule 23(a) have been met, convinces this court that plaintiff

3

Martinez’s pay claim is typical of those of the putative

4

class.

5

differentiate between “Tortilla Ria Clerk[s] & Donut

6

Fryer[s]” [.]” See, e.g., Larkin Decl’n (Doc. 161), exh. 13

7

thereto at BA 00196; exh. 14 thereto at BA 00206.

8

the duties differ, Bashas’ repeatedly classifies a Tortilla

9

Ria Clerk and a Donut Fryer together in one, single category

10

for wage purposes. See Bashas’ exh. 1 (Proulx Aff.), exh. G

11

thereto at BA 04350;, exh. H thereto at BA 04340; exh. I

12

thereto at BA 04321; exh. J thereto at BA 04283; exh. K

13

thereto at 2; exh. L thereto at BA 04256 - 04258; exh. M

14

thereto at BA 08281 - 0828_;21 BA 08293; BA 08295.

15

designation is not a one-time aberration. The joint

16

designation for “Tortillaria Clerk, [and] Donut Fryer” is

17

found elsewhere, on “Bashas’ Wage and Employee Benefit

18

Program[.]”

19

at BA 04231.

20

Most significantly, Bashas’ own pay scales do not

Even if

This joint

Larkin Supp. Decl’n (Doc. 196), exh. 10 thereto

Tortillaria Clerk and Donut Fryer are not the only joint

21

designations for wage purposes.

Bashas’ also jointly places

22

a “Lead Deli Clerk[]” and a “Cappuccino Manager” – two

23

positions which on the face of it seem to have little in

24

common - into one wage category.

25

BA 04231.

26

whatever reasons, Bashas’ deems so closely analogous to

27

warrant placing them in the same wage category.

See id., exh. 10 thereto at

Thus, there are certain job positions which, for

Had Bashas’ wanted to distinguish between Tortillaria

28
21

The Bates stamp number is obstructed on the copy provided to the court.

- 35 -

1

Clerks and Donut Fryers, it could have, as it did for

2

Tortilla Production Supervisors and Tortilla Machine

3

Operators.

4

wages; and, for the most part, employees in those positions

5

are paid more than employees in the Tortilla Ria Clerk and

6

Donut Fryer category.

7

The fact remains, however, that Bashas’ did not make any

8

distinction in terms of wages with respect to those two

9

positions.

10

Those are separate job listings, with separate

See e.g., exh. 10 thereto at BA 04234.

For these reasons, based upon the record as presently

11

constituted, to the extent Ms. Martinez is premising her

12

equal pay claim upon her tenure as a Food City Tortilla Ria

13

Clerk, her pay claim is typical of the pay claims of the

14

putative class.

15

as it must, focused on the

16

the class representative, and not to the specific facts from

17

which it arose or the relief sought.”

18

at 984 (internal citation and quotation marks omitted)

19

(emphasis added).

20

scenarios resulting in a claim of the same nature as other

21

class members does not defeat typicality.”

22

(citation omitted). Having found that plaintiff Martinez’s

23

pay claim is typical of those of the class, the next issue is

24

whether, as Bashas’ argues, her failure to exhaust her

In reaching this conclusion the court has,
nature of the claim or defense of

See Ellis I, 657 F.3d

That is because “[d]iffering factual

25
26
27
28

- 36 -

Id. at 985, n. 9

1

administrative remedies is a unique defense which would

2

defeat typicality.

3

ii. Exhaustion of Administrative Remedies

4

A plaintiff must file a timely charge of discrimination

5

with the EEOC as a prerequisite to bringing a Title VII

6

action.

7

Plaintiff Estrada filed such a charge and exhausted his

8

administrative remedies, see Bashas’ exh. 40, and that

9

plaintiff Martinez did not.

42 U.S.C. § 2000e-5(e).

There is no dispute that

Bashas’ argues that plaintiff

10

Martinez’s failure to exhaust her administrative remedies is

11

a “defense unique” to her, which bars her from serving as a

12

class representative as to any Title VII claims. Def.’s Resp.

13

MCC (Doc. 190) at 58:21, n. 39.22
Accurately reciting that notice is the underlying purpose

14
15

of

Title VII’s exhaustion requirement, see B.K.B. v. Maui

16

Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), plaintiffs

17

invoke the “single filing” or “piggyback” rule.

18

exception to exhaustion, “an individual who has not filed an

19

administrative charge can ‘piggyback’ on an EEOC complaint

20

filed by another person who is similarly situated.”23

Under that

21
22
23
24
25
26
27
28

22

Section 1981 does not contain a similar exhaustion requirement.
Therefore, Bashas’ failure to exhaust argument is limited to plaintiffs’
Title VII claims.
23

In Parra I, when discussing typicality as to the working
conditions claim, this court mentioned in passing that although Ms.
Martinez had not exhausted her administrative remedies, she “may
‘piggyback’ onto Estrada’s efforts and go forth with her Title VII claim.”
Parra I, 2005 WL 6182338, at *17 (citing Albemarle Paper Co. v. Moody, 422
U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). On its face,
that quote might appear to be dispositive of the exhaustion argument
herein. However, it is not.
There are two reasons for addressing the exhaustion argument anew at
this juncture. First, in Parra I, this court expressly declined to reach the
issue of typicality as to the equal pay claim. See n. 15 supra. Second,
although this court is not alone in citing footnote 8 in Albemarle for the

- 37 -

1

E.E.O.C. v. Giumarra Vineyards Corp., 2010 WL 3220387, at *4

2

(E.D.Cal. Aug. 13, 2010) (footnote and citation omitted).

3

Plaintiffs contend that Ms. Martinez is similarly situated to

4

“[s]everal [unspecified] members of the proposed class [who]

5

filed EEOC charges against [Bashas’] all alleging class

6

discrimination.”

7

Plaintiffs thus reason that as a result of those EEOC

8

charges, Bashas’ had “notice of the ‘substantive claims being

9

brought against [it] [and] of the number and generic

Pls.’ Reply (Doc. 207) at 25:7-9.

10

identities of the potential plaintiffs who may participate in

11

the judgment.’” Id. at 25:9-12 (quoting American Pipe &

12

Construction Co. v. Utah, 414 U.S. 538, 555, 94 S.Ct. 756, 38

13

L.Ed.2d 713 (1974)).

14

argue that Ms. Martinez’s failure to exhaust her

15

administrative remedies is not a defense unique to her.

16

Named plaintiff Martinez thus meets Rule 23(a)(3)’s

17

typicality requirement irrespective of her failure to exhaust

18

her administrative remedies, plaintiffs reason.

Given that purported notice, plaintiffs

19

Bashas’ retorts that the other EEOC charges did not

20

provide the requisite notice because those charges “were not

21

detailed, did not give [it] notice of the claims of the other

22
23
24
25
26
27
28

proposition that unnamed class members need not file charges for Title VII
suits to proceed, see, e.g., Dukes v. Wal-Mart Stores, Inc., 2002 WL
32769185, at *7 n. 4 (N.D.Cal. Sept. 9, 2002) (“Wal-Mart Stores”), a close
reading of Albemarle reveals that it does not speak directly to the issue
squarely before the court now: whether a named plaintiff who has not
exhausted her administrative remedies can, nonetheless, be an adequate
representative under Rule 23(a)(4).
Rather, footnote 8 answers in the
affirmative the issue of whether “backpay may be awarded on a class basis
even without exhaustion of administrative procedures by the unnamed class
members.”
See Albemarle, 422 U.S. at 414 n. 8, 95 S.Ct. 2362 (emphasis
added).

- 38 -

1

class members, and in particular, could not have possibly

2

given [it] notice of Martinez’ claims, because of their

3

uniqueness.”

4

(citation omitted).

5

factual support.

6

Def.’s Resp. MCC (Doc. 190) at 58, n. 39:26-27
Bashas’ argument lacks both legal and

In arguing that exhaustion of administrative remedies is

7

an essential predicate to serving as a class representative,

8

Bashas’ relies upon this single sentence from Inda v. United

9

Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977):
“[I]f one brings suits on his own behalf,
or as a named plaintiff on behalf of a
class, he must have secured a right to sue
by timely following the procedures set
forth in Title VII.”

10
11
12
13

Id. at 559.

14

Supercargoes & Checkers, 543 F.2d 1259 (9th Cir. 1976),

15

“foreclose[s]” Bashas’ Inda based argument.

16

(Doc. 207) at 24:9.

17

plaintiff had filed an EEOC charge, the Ninth Circuit

18

observed, “[t]his does not preclude representation of the

19

class by the other named plaintiffs or relief for the class.”

20

Gibson, 543 F.2d at 1266 n. 13 (emphasis added) (citing

21

Franks v. Bowman Transp. Co., 424 U.S. 747, 771, 96 S.Ct.

22

1251, 1267, 47 L.Ed.2d 444 (1976); Albemarle, 422 U.S. at 414

23

n.8, 95 S.Ct. 2362)).

24

Plaintiffs counter that Gibson v. Local 40,

Pls.’ Reply MCC

In Gibson, noting that only one

As plaintiffs strongly imply, Inda does not govern here,

25

but, then again, neither does Gibson.

26

Bashas’ for relying upon Inda, which it characterizes as

27

“dictum[,]” and because since 1977, when Inda was decided,

28

“[n]o Ninth Circuit case . . . has read Inda to impose . . .

- 39 -

Plaintiffs fault

1

a requirement[]” that each named plaintiff must exhaust their

2

administrative remedies to serve as a class representative.

3

See Pls.’ Reply (Doc. 207) at 24:24-25.

4

plaintiffs’ reliance upon Gibson is misplaced for nearly

5

identical reasons.

6

plaintiffs are relying also is dictum.

7

years since Gibson, it has never been read to support the

8

view that a named plaintiff need not exhaust their

9

administrative remedies.24

Somewhat ironically,

The portion of Gibson upon which
And, in the 37

Thus, there is no credence to

10

plaintiffs’ argument that Gibson “forecloses” Bashas’.

11

Bashas’ reliance upon Inda is equally unavailing.

12

past 36 years, the Ninth Circuit has never invoked Inda to

13

require each named plaintiff to individually exhaust their

14

administrative remedies.

15

[the] language [quoted above] in Inda is not dicta, it has

16

been restricted to its facts where a plaintiff sought to rely

17

on an administrative charge of an individual employee in a

18

separate action, and where the EEOC charge did not give

19

sufficient notice that other similarly-situated persons would

20

also be affected.”

21

Inc., 644 F.Supp.2d 1249, 1265 n. 11 (E.D.Cal. 2009)

In the

More importantly,“to the extent

E.E.O.C. v. Cal. Psychiatric Transitions,

22
24

23
24
25
26
27
28

This is not surprising given the Gibson Court’s reference to
Franks and Albemarle. Those two Supreme Court cases considered whether
unnamed plaintiffs can recover under Title VII; both found that they could.
Albemarle, 422 U.S. at 414 n. 8, 95 S.Ct. 2362 (“reject[ing] th[]e
contention[] . . . that no backpay can be awarded to those unnamed parties
in the plaintiff class who have not themselves filed charges with the
EEOC[]”); Franks, 424 U.S. 771, 96 S.Ct. 1251 (unnamed class members who
had been discriminated against by their employer, but who had not filed
administrative charges with the EEOC, were not precluded from relief in the
form of retroactive seniority). Neither of those decisions supports the
view expressed in Gibson, however, and upon which plaintiffs so heavily
rely, that an unnamed plaintiff, who has not filed an EEOC charge, may
serve as class representative.

- 40 -

1

(citations omitted).

More recently, citing to those two

2

district court decisions, the Ninth Circuit left no doubt

3

that “Inda should be limited to its specific facts – where a

4

plaintiff sought to rely on an administrative charge . . . of

5

an individual employee in a separate action.”

6

County of Orange, 682 F.3d 1126, 1136-1137 (9th Cir. 2012)

7

(citations omitted).

8

eviscerates Bashas’ argument, premised solely on Inda, that

9

Ms. Martinez is not an adequate class representative because

10

she did not exhaust her administrative remedies under Title

11

VII.

Harris v.

That express limitation on Inda

The Ninth Circuit’s Harris decision has relevancy here

12
13

beyond rejecting Inda’s restrictive interpretation of the

14

single filing rule.

15

action on behalf of thousands of Retirees alleging that the

16

“County’s restructuring of its retiree medical program[,]”

17

violated, inter alia, their constitutional rights and the

18

Fair Employment and Housing Act (“FEHA”).

19

at 1130.

20

an administrative charge, but it “did not state that it was

21

‘on behalf of’ other class members.”

22

Therefore, the district court found that the Retirees did not

23

exhaust their administrative remedies under the FEHA.25

24

appeal, “[t]he Retirees argue[d] that the single filing rule

25

permit[ted] them to ‘piggyback’ on the timely filed

26

administrative complaint . . . of one of the named

The Harris plaintiffs filed a class

Harris, 682 F.3d

One of the class representatives had timely filed

Id. at 1131.

On

27
28

25

Given the absence of relevant authority regarding the
applicability of the single filing rule in FEHA actions, the court looked
to Title VII cases, among others. Harris, 682 F.3d at 1136.

- 41 -

1
2

plaintiffs.”

Id. at 1135.

Agreeing, the Ninth Circuit reiterated that the “single

3

filing rule is based on the observation that it would be

4

duplicative and wasteful for complainants with similar

5

grievances to have to file identical notices of intent to sue

6

with a governmental agency.”

7

Crocker Nat’l Bank, 600 F.2d 754, 760 n. 15 (9th Cir. 1979));

8

see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,

9

1110 (10th Cir. 2001)

Id. at 1136 (citing Bean v.

(“The policy behind the single filing

10

rule is that it would be wasteful, if not vain, for numerous

11

employees, all with the same grievance, to have to process

12

many identical complaints with the EEOC.”) Consequently, even

13

though the Harris administrative complaint did not indicate

14

that it was a “class action” or “‘on behalf of others

15

similarly situated[,]’” nonetheless, the Court found it was

16

“sufficient to establish exhaustion of administrative

17

remedies for all class members.”

18

(footnote omitted).

19

plaintiffs, who had not filed administrative complaints were

20

“part of the same action asserted by” the plaintiff who had

21

timely filed such a complaint.

22

Id. at 1136 and 1137

That is because the other named

Id. at 1137.

Here, as fully discussed herein, Ms. Martinez is “part of

23

the same action asserted” by Mr. Estrada who did timely file

24

an EEOC charge.

25

defendant employer in Harris, Bashas’ had explicit,

26

unequivocal notice of the existence of other similarly

27

situated class members, such as Ms. Martinez.

28

such notice because Mr. Estrada

Furthermore, in sharp contrast to the

- 42 -

Bashas’ had

unambiguously declared that

1

he was “bring[ing] this charge on behalf of [him]self and

2

similarly situated Hispanic employees who [sic] [he]

3

believe[s] receive less pay and poorer assignments than

4

American-born, white employees.”

5

190), exh. 40 thereto.

6

additional notice because “[a]t least eight class charges of

7

race and national discrimination have been filed against [it]

8

by current proposed plaintiffs and class member witnesses in

9

this action.”

Def.’s Resp. MCC (Doc.

Not only that, arguably Bashas’ had

Pls.’ Reply to Def.s’ Resp. to Mot. for Leave

10

to File First Amended Complaint (Doc. 103) at 5:10-12.

11

if, as in Harris, the single filing rule can be applied

12

although the administrative complaint was silent as to

13

whether it was a class action or was being brought on behalf

14

of others similarly situated, surely Ms. Martinez can rely

15

upon that rule given that Mr. Estrada’s EEOC charge was

16

unequivocal and explicit on that point.

17

Thus,

Wal-Mart Stores, further bolsters a finding that Ms.

18

Martinez may “piggy-back” onto the EEOC charge of

Mr.

19

Estrada and others to establish exhaustion of her

20

administrative remedies.

21

to amend to add two plaintiffs who had never filed EEOC

22

charges.

23

charge of a named representative who had “filed charges on

24

her own behalf as well as for others similarly situated.”

25

Wal-Mart Stores, 2002 WL 32769185, at *5.

26

however, that named plaintiff was dismissed for failure to

27

meet Title VII’s venue requirements and she became a putative

28

class member.

There, the plaintiffs sought leave

The moving plaintiffs were relying upon the EEOC

Previously,

Among other reasons, including the Supreme

- 43 -

1

Court’s recognition that “EEOC charge-filing requirements are

2

. . . equitable in nature,” and because “notice was afforded

3

to Wal-Mart in accordance with the policy goals of Title

4

VII,” the Wal-Mart Stores court found “that all named

5

plaintiffs in a Title VII class action need not individually

6

exhaust EEOC charge-filing requirements prior to joining a

7

class action.”

8

further reasoned that “the policy underpinnings of Title VII

9

and the single filing rule set forth in Albermarle – notice

Id. at *7 (emphasis added).

The court

10

to the defendant – is fully satisfied where at least one

11

plaintiff has filed a charge of discrimination alleging broad

12

class claims; and (2) requiring additional identical filing

13

serves no purpose other than to ensure duplicative

14

administrative proceedings.”

15

omitted).

16

plaintiff may rely on the administrative compliance of

17

otherwise compliant fellow named representatives.”

Id. (citation and footnote

The court thus held that “a proposed named

Id.

18

As can be seen, “the analytical touchstone of the single

19

filing rule is whether the company had adequate notice of the

20

grievance to provide a basis for conciliation.”

21

Vineyards, 2010 WL 3220387, at *8.

22

adequate to support piggybacking under the single filing rule

23

if it contains sufficient information to notify prospective

24

defendants of their potential liability and permit the EEOC

25

to attempt informal conciliation of the claims before a

26

lawsuit is filed.”

27

F.Supp.2d at 1265 (citation omitted).

28

parties’ claims need not be factually identical to those

Giumarra

“A charge will be

Cal. Psychiatric Transitions, 644

- 44 -

However,“[t]he

1

timely filed, but instead need to be [of] sufficient

2

similarity as to prevent frustration of Title VII policies.”

3

Id. at 1266 (citation omitted).

4

intends to “give effect to the remedial purposes of [Title

5

VII] and to not exclude other suitable plaintiffs from [a

6

Title VII] class action simply because they have not

7

performed the useless act of filing a charge.”

8

Vineyards, 2010 WL 3220387, at *4 (internal quotation marks

9

and citation omitted).

10

The single filing rule thus

Giumarra

“[L]ook[ing] to the predicate or ‘actually filed’ EEOC

11

charge[]” of Mr. Estrada, id. (footnote and citations

12

omitted), it is apparent that that charge gave Bashas’ the

13

requisite notice.

14

Mr. Estrada’s charge informed Bashas’, inter alia, of the

15

nature of his pay claim:

16
17
18
19
20
21
22
23
24

After identifying himself as “Hispanic[,]”

While employed by Bashas’, Inc. I
believe that I have been discriminated
against based upon my national origin and
race with respect to pay[.]
Although the job I perform at Food
City is substantially the same job
as the work performed by my counterparts
at Bashas’, I am paid less on an hourly
basis than the similarly situated employees
at Bashas’. It is my belief and understanding
that most of the employees at Bashas’ are
American born and Caucasian. I believe I
am paid less because of my national origin,
Mexican, and my race, Hispanic.
Def.’s Resp. MCC (Doc. 190), exh. 40.

Further, Mr.

25

Estrada explicitly states that he was bringing his EEOC

26

charge “on behalf of [him]self and similarly situated

27

Hispanic employees who[m] [he] believe[s] receive less pay

28

and poorer assignments than American-born, white employees.”

- 45 -

1
2

Id.
Similarly, the FAC alleges that Ms. Martinez, like Mr.

3

Estrada, is a Hispanic hourly Food City employee, who was

4

paid less than her Caucasian counterparts at Bashas’ and

5

A.J.’s.

6

foregoing, Bashas’ argument that it lacked notice of Ms.

7

Martinez’s pay claim is wholly unavailing. Further, for

8

substantially the same reasons outlined in section A(3)(a)(i)

9

above, Ms. Martinez’s pay claim is not so unique from those

FAC (Doc. 116) at 3, ¶ 8.

In light of the

10

of Mr. Estrada so that it can be said that Bashas’ lacked

11

notice of her pay claim on that basis.

12

“uniqueness” of Ms. Martinez’s pay claim does not vitiate

13

that notice.

14

Hence, the asserted

Taking another but equally unpersuasive tack, Bashas’

15

contends that “[i]f Estrada (the only other named Plaintiff

16

now suing on behalf of the class) is dismissed from the case

17

or deemed inappropriate as class representative, Martinez

18

could not take his place.” Def.’s Resp. MCC (Doc. 190) at

19

57:19-21 (citation omitted).

20

Mr. Estrada cannot serve as a class representative, that

21

would not “negate notice.”

22

22 (citation omitted).

23

Ms. Martinez from serving as class representative even if,

24

ultimately, Mr. Estrada cannot.

25

Plaintiffs respond that even if

Pls.’ Reply (Doc. 207) at 25:21-

Hence, there is no basis for barring

Plaintiffs have the sounder argument.

In the first

26

place, Bashas’ primary authority, Robinson v. Sheriff of Cook

27

County, 167 F.3d 1155 (7th Cir. 1999), as well as the two

28

- 46 -

1

cases to which it cites,26 are out of Circuit non-binding

2

precedent. Second, all three cases are factually

3

distinguishable, further diminishing their precedential

4

value.27

5

challenged Mr. Robinson’s suitability as a class

6

representative relying upon evidence of “his very poor

7

employment record[.]” Robinson, 167 F.3d at 1156.

8

basis, the district court rejected Robinson as the class

9

representative, but allowed another individual “to join the

In Robinson, also a Title VII action, the defendant

On that

10

suit as a plaintiff and take Robinson’s place as class

11

representative.”

12

it was later discovered that that second individual had not

13

filed an EEOC charge, the district court dismissed her claim

14

and “disqualified her from serving as Robinson’s successor as

15

class representative. “ Id. at 1156.

16

proceeded with the original named plaintiff’s individual

Robinson, 167 F.3d at 1158; and 1156.

When

The district court

17
26

18
19
20
21
22
23
24
25
26
27
28

Wakeen v. Hoffman House, Inc., 724 F.2d 1238 (7th Cir. 1983); and
Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987).
27

Wakeen involved a very different situation than the present case.
In Wakeen, the Seventh Circuit held “that a class member who does not meet
the procedural prerequisites for waging a Title VII suit may not use the
guise of a motion to intervene to take over as the sole class
representative for someone who initiates but is not legitimately able to
continue a class action.” Wakeen, 724 F.2d at 1246. In fact, in Byas v.
Union Pacific R.R. Co., 2007 WL 1021976 (S.D.Ill. 2007), in a case not
unlike the present one, the court held that “[t]he narrow holding of Wakeen
does not apply in the instant case, where there are three named plaintiffs,
one of whom has satisfied EEOC filing requirements.” Id. at *3 (emphasis
added).
Griffin is likewise readily distinguishable from the present case.
There, the Eleventh Circuit held that an intervening plaintiff could not
invoke the single filing rule because he was “not sufficiently similarly
situated[]” to the plaintiff who had timely filed an adequate EEOC
As discussed above, plaintiff
complaint.
Griffin, 823 F.2d at 1493.
Martinez’s pay claim is sufficiently similar to plaintiff Estrada’s.
Moreover, unlike in Griffin, plaintiff Martinez is not seeking
intervention.

- 47 -

1

claim, dismissing it after a bench trial.
On appeal, the plaintiffs argued, inter alia, that the

2
3

class should have been certified with both of them as “class

4

representatives irrespective of the deficiencies in their

5

claims[.]” Id. at 1157.

6

certification, the

7

that because Robinson had been rejected as the class

8

representative, “there was no class action when [the second

9

individual] was added to the suit.”

10

Affirming denial of the class

Robinson Court found dispositive the fact

Id. at 1158.

Expanding

upon that reason, then Chief Judge Posner wrote:
There was no class representative who
had dropped the baton for her to pick up;
Robinson had never been approved as
the class representative. [The second
individual’s] suitability as class
representative had thus to be
determined independently of him.

11
12
13
14

Bashas’ asserts that Ms. “Martinez would fail [such] an

15

Id.

16

independent evaluation of her suitability to be class

17

representative and should not be approved as one.”

18

Resp. MCC (Doc. 190) at 58:11-12 (footnote omitted).

19
20
21
22
23
24
25
26

Def.’s

To support this assertion, Bashas’ seizes upon the
following language from Robinson:
In effect the appeal asks us to graft
[the original class representative’s]
timely filing with the EEOC onto
[the successor’s] untimely but not-yetshown-to-be-unmeritorious discrimination
case to create a composite plaintiff to
represent the class of blacks denied
employment by the defendant. We cannot
find any basis in law or good sense for
such ghastly surgery. Neither plaintiff
is a suitable class representative, and
zero plus zero is zero.

27
28

Id. at 58:2-5 (quoting Robinson, 167 F.3d at 1157) (other

- 48 -

1

citations omitted).

2

distinguishable, it does nothing to advance Bashas’ argument,

3

however.

4

Because Robinson is readily

The above quote was made in the context of “a named

5

plaintiff whose claims were particularly deficient-in fact,

6

they had been dismissed-and who was attempting to represent a

7

class of people with potentially plausible claims.”

8

Wilson v. Delta-T Group, Inc., 270 F.R.D. 596, 605 (S.D.Cal.

9

2010) (emphasis in original).

Norris-

That is not the situation

10

here.

There has been no showing at this juncture that Ms.

11

Martinez’s pay

12

What is more, Robinson supports the view that “[a] plaintiff

13

should not be disqualified as a class representative simply

14

because the “defendant may have good defenses” against that

15

plaintiff.”

16

8601203, at *2 (N.D.Cal. Dec. 7, 2011) (quoting

17

Norris–Wilson, 270 F.R.D. at 605 (quoting in turn Robinson,

18

167 F.3d at 1158) (emphasis in original).

19

plaintiff be “disqualified as class representative if [s]he

20

may fail to prove h[er] case[.]” Robinson, 167 F.3d at 1158

21

(citation omitted) (emphasis in original).

22

Court made clear, “[o]nly if a plaintiff’s ‘claim is a clear

23

loser at the time [she] asks to be made class representative’

24

should she be disqualified, because in that case, approving

25

her ‘as class representative can only hurt the class.’”

26

Perez, 2011 WL 8601203, at *2 (quoting Robinson, 167 F.3d at

27

1158) (emphasis in original)).

28

showing here.

claim is “particularly deficient[.]” See id.

Perez v. State Farm Mut. Auto. Ins. Co., 2011 WL

Nor should a named

As the Robinson

There has been no such

- 49 -

Thus, the primary purpose of filing an EEOC charge --

1
2

notice -- was afforded to Bashas’, even though named

3

plaintiff Martinez did not herself file such a charge.

4

Estrada’s EEOC charge, and others, “contain[ed] sufficient

5

information to notify [Bashas’] of [its] potential liability

6

and permit the EEOC to attempt informal conciliation of the

7

claims before a lawsuit is filed.”

8

Transitions, 644 F.Supp.2d at 1265 (citation omitted).

9

Therefore, because “the purposes behind the filing

Mr.

See Cal. Psychiatric

10

requirement [we]re satisfied” in this case, “no injustice or

11

contravention of congressional intent occurs by allowing [Ms.

12

Martinez] [to] piggyback[]’” on Mr. Estrada’s charge.

13

Giumarra Vineyards, 2010 WL 3220387, at *5 (quoting Thiessen,

14

267 F.3d at 1110).

15

charge and others, see Def.’s Resp. MCC (Doc. 190), exh. 40

16

thereto, gave Bashas’ notice of the pay claim against it, Ms.

17

Martinez was not required to perform the “useless act” of

18

filing her own separate charge.

19

3220387, at *4 (“An act of filing an EEOC charge is deemed

20

‘useless’ in situations in which the employer is already on

21

notice that Plaintiffs may file discrimination claims, thus

22

negating the need for additional filings.”) (internal

23

quotation marks and citation omitted).

24

plaintiff Martinez can avail herself of the single filing

25

rule and piggyback on the EEOC charges of other plaintiffs,

26

such as Mr. Estrada.28

27
28

See

In fact, because Mr. Estrada’s EEOC

28

Giumarra Vineyards, 2010 WL

As discussed above,

This does not foreclose the possibility that if, at a later
juncture, plaintiff Martinez’s ability to represent the class is “found
wanting, the court may seek a substitute representative or decertify the
class.” See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 416, 100 S.Ct.

- 50 -

1

Accordingly, because plaintiff Martinez’s pay claim is

2

not subject to the defense of failure to exhaust her

3

administrative remedies, that defense “cannot be a reason for

4

finding that the typicality requirement is not satisfied.”

5

See Evon, 688 F.3d at 1030 (because defendant did “not

6

qualify for the bona fide error defense as a matter of law,

7

. . . whether [plaintiff’s] claim is subject to this

8

affirmative defense cannot be a reason for finding that the

9

typicality requirement is not satisfied[]”).

For that same

10

reason, there is no “danger that absent class members will

11

suffer” because plaintiff Martinez “is preoccupied with [a]

12

defense[] unique to [her].’” See Ellis I, 657 F.3d at 984

13

(quoting Hanon, 976 F.2d at 508 (other quotation marks and

14

citation omitted).

15

there also is no danger that plaintiff Martinez’s failure to

16

exhaust her administrative remedies will “create a

17

distraction that will become a ‘major focus of the

18

litigation.’” See Ellis II, 285 F.R.D. at 534.

19

neither plaintiff Martinez’s pay claim nor her failure to

20

exhaust her administrative remedies are barriers to a finding

21

of typicality.

22

whether

23

23(a)(3)’s typicality standard given what Bashas’ describes

24

as the lack of

25

See Def.’s Resp. MCC (Doc. 190) at 45:9.

26

. . .

Finally, based upon the rulings herein,

In short,

The issue still remains, though, as to

plaintiffs Estrada and Martinez can meet Rule

evidence of a shared “common experience[.]”

27
28

1202, 63 L.Ed.2d 479 (1980) (citations omitted) (“If the named plaintiff’s
own claim becomes moot after certification, the court can re-examine his
ability to represent the interest of the class members.”)

- 51 -

b.

1

Gonzalo Estrada and Aurliea Martinez

2

Typicality, like commonality, “serve[s] as [a]

3

guidepost[] for determining whether under the particular

4

circumstances maintenance of a class action is economical and

5

whether the named plaintiff’s claim and the class claims are

6

so interrelated that the interests of the class members will

7

be fairly and adequately protected in their absence.”

8

131 S.Ct. at 2511, n. 5 (quoting Falcon, 457 U.S. at 157, n.

9

13, 102 S.Ct. 2364).

Dukes,

“The test of typicality is whether

10

other members have the same or similar injury, whether the

11

action is based on conduct which is not unique to the named

12

plaintiffs, and whether other class members have been injured

13

by the same course of conduct.”

14

(internal citation and

15

differently, under Rule 23(a)(3)’s “permissive standards,

16

representative claims are ‘typical’ if they are reasonably

17

co-extensive with those of absent class members; they need

18

not be substantially identical.”

19

150 F.3d 1011, 1026 (9th Cir. 1998).

Ellis I, 657 F.3d at 984

quotation marks omitted).

Put

Hanlon v. Chrysler Corp.,

That test for typicality is easily met here, despite

20
21

Bashas’ contrary protestations.

Plaintiff Estrada is a

22

Hispanic former hourly Food City employee, and plaintiff

23

Martinez is a Hispanic

current Food City hourly employee.29

24
29

25
26
27
28

Ms. Martinez’s declaration is from 2004. Not having been advised
to the contrary, the court presumes she is still a Food City employee. At
the same time, however, the court is well aware that
“[c]lass
certification is not immutable, and class representative status could be
withdrawn or modified if at any time the representatives could no longer
protect the interests of the class.” Cummings v. Connell, 316 F.3d 886, 896
(9th Cir. 2003) (citation omitted); see also Lopez v. San Francisco Unified
School District, 2003 WL 26114018, at *2 (N.D.Cal. Sept. 8, 2003) (citation
omitted) (“[T]he Court has a duty throughout the litigation to stringently
examine the adequacy of class representatives.”)

- 52 -

1

Both allege that they were paid less than their Caucasian

2

counterparts at A.J.’s and Bashas’ for performing the same

3

work.

4

190), exh. 40 (Estrada EEOC charge) thereto. The putative

5

class, comprised of “all past, present and future Latino

6

employees of” defendant alleges that same, identical injury.

7

See FAC (Doc. 116) at 3:19-20, ¶ 10.

8

with respect to commonality, this lawsuit is “based on

9

conduct which is not unique to the named plaintiffs”

See FAC (Doc. 116) at ¶ 8; and Def.’s Resp. MCC (Doc.

Further, as discussed

–

10

Bashas’ wage scales.

See Ellis I, 657 F.3d at 984 (internal

11

quotation marks and citation omitted).

12

members have been injured by” those wage scales

13

Bashas’ conceded, under its wage scales “Hispanic employee

14

hourly rates were lower in similar jobs[,]”30 at least “during

15

the period 1998-2000[.]”

16

Thus, as just shown, Bashas’ contention that the alleged

17

discrimination has not “‘manifested itself . . . in the same

18

general fashion[]’” borders on the frivolous insofar as the

19

equal pay claim is concerned.

20

190) at 45:9; and

21

n. 15, 102 S.Ct. 2364) (emphasis added by Bashas’).

Lastly, “other class
because, as

See Parra II, 536 F.3d at 979.

See Def.’s Resp. MCC (Doc.

45:26-27 (quoting Falcon, 457 U.S. at 159

An additional basis for finding typicality in this action

22
23

is that the named plaintiffs’ pay claims “rest on legal

24

theories that apply to all putative class members.”

See Wood

25
26
27
28

30

As previously discussed, this is one of three concessions which
the Ninth Circuit found highly pertinent with respect to commonality.
However, because Rule 23(a)’s commonality and typicality requirements
“‘tend to merge[,]’” Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at
157 n. 13, 102 S.Ct. 2364)), this concession also heavily bears on the
typicality inquiry.

- 53 -

1

V. Betlach, 286 F.R.D. 444, 448 (D.Ariz. 2012) (citing Cohen

2

v. Chicago Title Ins. Co., 242 F.R.D. 295, 299 (E.D.Pa. 2007)

3

(“[E]ven relatively pronounced factual differences will

4

generally not preclude a finding of typicality where there is

5

a strong similarity of legal theories.’”) (citation omitted);

6

Mitchell–Tracey v. United Gen. Title Ins. Co., 237 F.R.D.

7

551, 558 (D.Md. 2006) (“‘[W]hile claims of particular

8

individuals may vary in detail from one to another, the

9

collective claims focus on particular policies applicable to

10

each class member thereby satisfying the typicality

11

requirement of Rule 23(a).’”) (other citation and footnote

12

omitted).

13

the same legal theories, and because those claims are

14

reasonably co-extensive with the absent class members, they

15

have cleared the typicality hurdle.

16

Inc., 2012 WL 2872788, at *8 (E.D.Cal. July 12, 2012)

17

(typicality shown where “Plaintiffs’ claims are ‘co-

18

extensive’ with the other Class Members, as Plaintiffs and

19

the absent Class Members were all Defendants' employees who

20

were paid under the same pay practices and worked under the

21

same company-wide employment policies[]”); see also Marin v.

22

Evans, 2008 WL 2937424, at *4 (E.D. Wash. July 23, 2008)

23

(finding typicality where the “named Plaintiffs were

24

employees of [defendant company], and their claim is that

25

they were allegedly injured by the Illegal Hiring Scheme by

26

reduction in pay, which is typical of the claims that would

27

be asserted by all members of the purported class[]”).

28

. . .

Because the named plaintiffs’ pay claims rest on

- 54 -

See Gong-Chun v. Aetna

4.

1

Adequacy

2

The last Rule 23(a) hurdle plaintiffs must clear is

3

subsection four, which provides that “the representative

4

parties will fairly and adequately protect the interests of

5

the class.”31

6

“satisf[ies] due process concerns[]” in that “absent class

7

members must be afforded adequate representation before entry

8

of a judgment which binds them.”

9

(citing Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115,

Fed.R.Civ.P. 23(a)(4).

This requirement

Hanlon, 150 F.3d at 1020

10

85 L.Ed. 22 (1940)).

11

requirement “also raises concerns about the competency of

12

class counsel and conflicts of interest.”

13

S.Ct. at 2551 n. 5 (citation and internal quotation marks

14

omitted).

15

among other factors, an absence of antagonism between

16

representatives and absentees, and a sharing of interest

17

between representatives and absentees.”

18

985

19

whether named plaintiffs will adequately represent a class,

20

courts must resolve two questions: ‘(1) do the named

21

plaintiffs and their counsel have any conflicts of interest

22

with other class members and (2) will the named plaintiffs

23

and their counsel prosecute the action vigorously on behalf

Therefore,

The adequacy-of-representation

See Dukes, 131

“[a]dequate representation depends on,

(citation omitted).

Ellis I, 657 F.3d at

Consequently, “[t]o determine

24
25
26
27

31

“Since the revision of Rule 23 in December 2003, the adequacy of
class counsel is now evaluated pursuant to Rule 23(g). ‘Rule 23(a)(4) will
continue to call for scrutiny of the proposed class representative, while
this subdivision will guide the court in assessing proposed class counsel
as part of the class certification process.’” Parra I, 2005 WL 6182338, at
*18 n. 33 (quoting Fed.R.Civ.P. 23 Advisory Committee note).

28

- 55 -

1

of the class?’” Id. (quoting Hanlon,

150 F.3d at 1020).

2

Here, as explained below, the court answers the first

3

question in the negative, and the second, in the affirmative.

4

As a result, it finds that named plaintiffs Estrada and

5

Martinez are adequate class representatives with respect to

6

the pay claim.
Plaintiffs Estrada and Martinez maintain that they are

7
8

adequate class representatives because they are “able and

9

willing to represent the class[,]” and they have the

“same”

10

interests as those of the potential class members in that

11

they are seeking to prove, inter alia, that Bashas’ “pay

12

policies . . . discriminate against Hispanic[] workers.”

13

Pls.’ MCC (Doc. 159) at 22:10-13 (citations and footnote

14

omitted).

15

plaintiffs do not have the same interests as the putative

16

class because they are “puppets” of the United Food and

17

Commercial Workers Union (“the Union”), having “private

18

ulterior motives[.]”

19

47:7 (emphasis omitted).

Essentially, Bashas’ counters that the named

Def.’s Resp. MCC (Doc. 190) at 48:1-2l;

20

This ulterior motives argument can be resolved with

21

dispatch because this court already addressed it in Parra I,

22

albeit in the context of the working conditions claim.

23

differing nature of the claim does not change the result

24

though.

25

and the court’s view is the same.

26

the named plaintiffs are inadequate due to [Bashas’]

27

allegations of ulterior motives.”

28

*18.

The

The record is the same; the arguments are the same;
It is “not convinced that

Parra I, 2005 6182338, at

It is necessary, though, to address Bashas’ remaining

- 56 -

1

challenges, not specifically addressed in Parra I, as to the

2

adequacy of named plaintiffs Estrada and Martinez to serve as

3

class representatives.
a.

4

i.

5
6

Gonzalo Estrada
“Individual Claim”

Bashas’ claims that plaintiff Estrada is not an adequate

7

class representative because he has “no individual claim fit

8

to pursue[.] Def.’s Resp. MCC (Doc. 190) at 56:6.

9

court’s finding in Parra I that plaintiff Estrada

This

10

“articulated [a] claim for pay disparity” undercuts that

11

assertion.

12

See Parra I, 2005 WL 6182338, at *17.

There is likewise no merit to Bashas’ claim that Mr.

13

Estrada is not an adequate class representative because

“he

14

is involved in this suit, not for what happened to him, but

15

for what happened to others.”

16

54:10-11.

17

snippet from Mr. Estrada’s deposition:

Def.’s Resp. MCC (Doc. 190) at

The basis for this assertion is the following

19

Q. And in this lawsuit you’re not
involved in it because of what
happened to you?

20

A.

No.

21

Q.

You’re standing up for other employees?

22

A.

Yes.

18

23

Id. at 54:12-16 (citing exh. 11 thereto 54:4-8) (footnote

24

omitted).

25

willingness to “stand[] up for other employees” is further

26

indicia that plaintiff Estrada is a proper class

27

representative.

28

Estrada, like Ms. Martinez, has declared his “ability and

If anything, it strikes the court that a

See id.

This is especially so given that Mr.

- 57 -

1

willingness to represent the class.”

See Parra I, 2005 WL

2

6182338, at *18 (citations omitted).

Taking the record as a

3

whole, the court finds unconvincing Bashas’ argument that

4

plaintiff Estrada is not an adequate class representative

5

because he is not asserting an individual claim.
ii.

6
7

Former Employee

Bashas’ also endeavors to show that Mr. Estrada and the

8

potential class members do not have a shared interest because

9

he is a former Food City employee whose circumstances are

10

“vastly different” than those of the putative class.

11

Resp. MCC (Doc. 190) at 54:27, n. 38.

12

Mr. Estrada’s lack of “interest in returning to Food City,”32

13

which Bashas’ argues renders “moot . . . the issue of

14

injunctive relief[.]”

15

relief sought, plaintiffs respond that “[f]ormer employees may

16

represent current employees in a class action[.]” Pls.’ Reply

17

(Doc. 207) at 24:1 (citations omitted).

18
19

Id.

Def.’s

One such difference is

Disregarding the nature of the

These arguments are imported directly from the 2004 class
certification motion.33

Both the law, and the plaintiffs’

20
32

21
22
23
24
25
26
27
28

To support this assertion, Bashas’ is relying upon an excerpt
from Mr. Estrada’s deposition. See Def.’s Resp. MCC (Doc. 190) at 54:26
(citing “Estrada Depo p. 44 ll. 10-12"). There is no reason to doubt the
veracity of that statement. At the same time though, there is no way to
ascertain its accuracy because the excerpts provided in connection with the
supplemental briefs did not include that page. That is also the case for
the remaining excerpts from Mr. Estrada’s deposition which Bashas’ cites in
footnote 38 of its response to the motion for class certification. Such
inadvertent omissions are always bothersome, but they were all the more so
here where the combined briefs and record are in the range of 3,000 pages.
33

Devoting its post-Dukes briefs exclusively to commonality and
typicality, Bashas’ omitted any discussion of adequacy. In their postDukes supplemental brief, plaintiffs direct the court to their “original
briefing” as to adequacy, among other things. See Pls.’ Supp. Br. (Doc.
302) at 19:25-26. Therefore, because on remand this court must consider
whether each of the threshold Rule 23(a) requirements is met as to the

- 58 -

1

position along with it, have changed since that time however.

2

In 2004, plaintiffs were relying upon Rule 23(b)(2)34 as the

3

basis for class certification of both the equal pay and

4

working conditions claims.

5

certified a class under that Rule only as to working

6

conditions.

7

Court unanimously held

8

belong in Rule 23(b)(3)”35

– not in Rule 23(b)(2).

9

Dukes, 131 S.Ct. at 2558.

Consequently, in light of Dukes,

In fact, in Parra I, this court

In the intervening years, in Dukes the Supreme
that “individualized monetary claims
See

10

now plaintiffs are seeking class certification of the equal

11

pay claim strictly on the basis of Rule 23(b)(3).

12

That shift takes the issue of injunctive relief

13
14
15

equal pay claim, necessarily it has resorted to the parties’ original, preDukes’ arguments.
34

16

A class action may be maintained if Rule 23(a)
is satisfied and if: . . .

17
18

the party opposing the class has acted
or refused to act on grounds that apply
generally to the class, so that final
injunctive relief or corresponding
declaratory relief is appropriate respecting
the class as a whole[.]

19
20
21
22

Fed.R.Civ.P. 23(b)(2).
35

23
24
25
26
27
28

That Rule provides:

In relevant part, that Rule reads as follows:
A class action may be maintained if
Rule 23(a) is satisfied and if:
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).

- 59 -

1

completely out of the equation insofar as the pay claim is

2

concerned.

3

prevail on their pay claim, Mr. Estrada, as well as other

4

putative class members (current and former hourly Food City

5

employees), would be entitled to recover monetary damages,

6

despite the fact they are no longer employed there.

7

Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 87

8

(S.D.N.Y. 2001) (in analyzing adequacy, finding that

9

“[b]ecause this is a suit primarily for money damages stemming

Not only that, if ultimately plaintiffs were to

See

10

from past actions, it is not relevant that only one of the

11

named Plaintiffs is still employed as a delivery person[]”).

12

The Supreme Court in Dukes recognized as much, stressing that

13

“if a backpay action were properly certified for class

14

treatment under (b)(3), the ability to litigate a plaintiff’s

15

backpay claim as part of the class would not turn on the

16

irrelevant question whether []he is still employed at

17

defendant store].”

18

original).

19

does not weaken a finding that he is an adequate class

20

representative insofar as the plaintiffs are seeking monetary

21

damages for their equal pay claim.36

22

[the

Dukes, 131 S.Ct. at 2560 (emphasis in

Thus, plaintiff Estrada’s former employee status

The same is true with respect to Bashas’ litany of the

23
24
25
26
27
28

36

By curtailing the relief which they are seeking as to their pay
claim, plaintiffs have negated altogether Bashas’ argument that as a former
employee Mr. Estrada is an inadequate class representative because he lacks
a shared interest with the class as to injunctive relief.
If plaintiffs
were still seeking such relief, the result would be different, see Ellis I,
657 F.3d at 986 (vacating district court’s finding that the former
employees could adequately represent that class because they had “no
incentive to pursue injunctive relief[,]” and hence they did not “share an
interest with class members whose primary goal [wa]s to obtain injunctive
relief[]” under Rule 23(b)(2)), but the fact remains that they are not.
Plaintiffs’ equal pay claim seeks only monetary damages.

- 60 -

1

other “vastly different circumstances” which allegedly are

2

indicative of a conflict of interest, such that Mr. Estrada

3

would not adequately represent the class.

4

MCC (Doc. 190) at 54, n. 38.

5

the court fails to see how, Estrada’s termination, his

6

supposed lack of interest in working at A.J.’s or Bashas’, or,

7

in the grocery industry generally, and his doubling in pay,37

8

render him an inadequate class representative.

9

plaintiff Estrada is seeking the same relief as the putative

See Def.’s Resp.

Bashas’ does not explain, and

Moreover,

10

class – monetary damages.

11

as the putative class

12

employee, allegedly he received less pay than his Caucasian

13

counterparts at A.J.’s and Bashas’.

14

there a “sharing of interest” between plaintiff Estrada and

15

the potential class members, but there is an “absence of

16

antagonism between” them.

17

(citation omitted).

18

adequate class representative pursuant to Rule 23(a)(4),

19

insofar as the pay claim is concerned.

20

. . .
b.

21
22
23
24
25
26
27
28

His claimed injury also is the same

– as a Hispanic Food City hourly

Consequently, not only is

See Ellis I, 657 F.3d at 985

Accordingly, plaintiff Estrada is an

Aurelia Martinez

37

Observing that plaintiff Estrada’s pay “nearly doubled,” Bashas’
strongly implies that that factor militates against a finding that he is an
adequate representative. See Def.’s Resp. MCC (Doc. 190) at 54:24, n. 38
(citing “Estrada Depo p. 7 l.21 - p. 8 ll.14"). This is one of the
deposition excerpts, mentioned earlier, which was not provided to the
court. In this instance, however, based upon Mr. Estrada’s declaration,
the court was able to easily corroborate that his pay did nearly double
during his tenure at Food City. See Estrada Decl’n (Doc. 176) at 3:7-14,
¶ 8. At the end of the day that is immaterial though if, as plaintiffs
allege, Mr. Estrada’s Caucasian counterparts at Bashas’ and A.J.’s were
paid more for doing the same or similar work. Therefore, this asserted
doubling of pay does not mean that Estrada would be an inadequate class
representative.

- 61 -

1

Bashas’ advances two other equally unpersuasive theories

2

as to why Ms. Martinez in particular is not an adequate class

3

representative.

4

weak, and the second is her credibility.
i.

5
6

The first is that allegedly her claims are

Strength of Claims

Bashas’ disputes the legitimacy and sufficiency of Ms.

7

Martinez’s claims because in June 1999, when she and her

8

husband filed for bankruptcy, she did not list her potential

9

claims in this lawsuit as a contingent and unliquidated claim

10

on their Schedule B form.

11

accompanying that Schedule under penalty of perjury.

12

Def.’s Resp. MCC (Doc. 190) at 62:9-10.

13

October, 2002, when Ms. Martinez and her husband were

14

discharged in bankruptcy, and the April 4, 2002, commencement

15

of this action, Bashas’ points out that Ms. Martinez did not

16

amend Schedule B to include any potential claims herein.

17

These omissions, Bashas’ contends, “suggest[] either that (1)

18

[Ms. Martinez] has no legitimate claims, or (2) she knew that

19

any potential claim had no value.”

20

The court declines to make either inferential leap, especially

21

when there is no factual or legal basis for so doing.

22

Ms. Martinez signed the declaration
See

Further, between

Id. at 61:15-16; 62:18-20.

Ms. Martinez did not become a named plaintiff until more

23

than four and a half years after she and her husband filed for

24

bankruptcy.

25

it is not surprising that Ms. Martinez did not mention this

26

lawsuit during the bankruptcy.

27

month overlap of the pendency of this action and the Martinez

28

bankruptcy, Ms. Martinez’s involvement in this action was
peripheral.

Therefore, the court agrees with plaintiffs that

Furthermore, during the six

She was simply a member of a proposed, but
- 62 -

1

uncertified, class.

2

including the scope of the class,

3

knowing whether she would actually become a class member.

4

fact, the possibility of Ms. Martinez becoming a named

5

plaintiff did not occur until December 4, 2003, more than a

6

year after the bankruptcy discharge, upon the filing of a

7

motion to amend the complaint to include Ms. Martinez as a

8

named plaintiff.

9

the FAC, adding Ms. Martinez as a named plaintiff, actually

10

was filed. This particular factual situation does not give

11

this court any reason to doubt the adequacy of Ms. Martinez as

12

a class representative.

13

Until a decision on class certification,
Ms. Martinez had no way of
In

And, it was not until March 11, 2004, that

Continuing to question the strength of Ms. Martinez’s

14

claims, because she did not disclose them during her

15

bankruptcy, Bashas’ argues that such “[w]eakness or

16

illegitimacy in a proposed class representative’s case is an

17

“‘independent reason to doubt the adequacy of [her]

18

representation.’”

19

(quoting Robinson, 167 F.3d at 1157) (other citations

20

omitted).

Def.’s Resp. MCC (Doc. 190) at 63:7-8

This argument is unpersuasive.

21

In the first place, this court agrees that “[t]he

22

adequacy prong of Rule 23(a) isn't the place to try to

23

litigate the merits of a case.”

24

605-06.

25

of Rule 23 . . . gives a court any authority to conduct a

26

preliminary inquiry into the merits of a suit in order to

27

determine whether it may be maintained as a class action.’”

Norris-Wilson, 270 F.R.D. at

“In fact, ‘nothing in either the language or history

28

- 63 -

1

Id. (quoting United Steel Workers, 593 F.3d at 808

2

(alterations in original) (other citations omitted).

3

Second, Bashas’ main authority, Robinson, is non-binding

4

Seventh Circuit precedent and distinguishable in one very

5

critical respect.

6

brought a Title VII putative class action.

7

applicant’s adequacy as a class representative, the defendant

8

employer came forth with evidence showing that that applicant

9

“had been turned down because of his very poor employment

There, a correction officer applicant
Challenging that

10

record, which among other things contained an unexplained 27-

11

month gap between jobs.”

12

that employment history, the district court denied class

13

representative status to that applicant.

14

that class certification was properly denied, the Robinson

15

Court reasoned:

16
17
18
19
20

Robinson, 163 F.3d at 1156.

Due to

Holding, inter alia,

[I]f when class certification is
sought it is already apparent -as it was here because of Robinson’s
employment history as shown on the
application that he submitted to
the Sheriff’s office -- that the class
representative’s claim is extremely
weak, this is an independent reason to
doubt the adequacy of his representation.

21

Id. at 1157 (citations omitted).

The Court further reasoned,

22

that if a named plaintiff’s “claim is a clear loser at the

23

time he asks to be made class representative, then approving

24

him as a class representative can only hurt the class.”

25

at 1158 (emphasis in original).

Id.

26

In sharp contrast to Robinson, the asserted weakness in

27

Ms. Martinez’s claims –- her failure to disclose them during

28

bankruptcy -- has nothing whatsoever to do with the merits.

- 64 -

1

According to Bashas’, Ms. Martinez’s claims herein are weak

2

because she did not disclose them during bankruptcy.

3

does not assert, and it would be hard-pressed to, that Ms.

4

Martinez’s pay claim is “extremely weak,” much less a “clear

5

loser” on the merits.

6

disclose her potential claims is not “an independent reason to

7

doubt the adequacy of her representation.”

8

F.3d at 1156 (citations omitted).
ii.

9
10

Bashas’

Thus, Ms. Martinez’s failure to

See Robinson, 167

Credibility

Emphasizing that Ms. Martinez signed the declaration

11

accompanying the Schedule B Form under penalty of perjury,

12

Bashas’ strongly implies that Ms. Martinez has credibility

13

issues which impact her adequacy as a class representative.

14

“[C]redibility is a relevant consideration with respect to the

15

adequacy analysis[.]”

16

(internal quotation marks and citations omitted).

17

time, however, “credibility problems must relate to issues

18

directly relevant to the litigation or there are confirmed

19

examples of dishonesty, such as a criminal conviction for

20

fraud.”

21

Thus, even if the court were to find, which it does not, that

22

Ms. Martinez’s credibility is at issue because she did not

23

disclose this lawsuit during bankruptcy, such credibility

24

issue would not impact her ability to serve as a class

25

representative.

26

Keegan, 2012 WL 2250040, at *14
At the same

Id. (internal quotation marks and citations omitted).

To this point, the focus has been upon the first prong of

27

adequacy – the absence of antagonism and sharing of interests

28

between the named plaintiffs and the absentee class members.

- 65 -

1

As the foregoing discussion shows, there has been no showing

2

that either plaintiffs Estrada or Martinez have any conflicts

3

with putative class members.

That is only the first prong of

4

the adequacy test, however.

As to the second, “will the named

5

plaintiffs and their counsel prosecute the action vigorously

6

on behalf of the class[,]” Ellis I, 657 F.3d at 985 (internal

7

quotation marks and citation omitted), in Parra I this court

8

found that they would by implication.

9

6182338, at

*20 - *22.

See Parra I, 2005 WL

To be sure, at that time, the court

10

was discussing appointment of class counsel pursuant to

11

Fed.R.Civ.P. 23(g), and not adequacy under Rule 23(a)(4).

12

There is no reason to revisit the issue of whether class

13

counsel will vigorously prosecute this action, however,

14

because Bashas’ has not raised any other issues in that regard

15

beyond those raised and resolved in Parra I.

16

Additionally, “[i]n assessing whether class

17

representatives and their counsel will vigorously prosecute a

18

class action litigation, courts may consider the actual

19

progress of the proceedings to that point.”

20

Healthcare Services, Inc., 2012 WL 3705263, at *6 (C.D.Cal.

21

Aug. 27, 2012) (internal quotation marks and citation

22

omitted).

23

class certification stage, it is not due to the failure of

24

plaintiffs’ counsel to vigorously prosecute this action.

25

fact, their continued involvement at every step of this rather

26

complicated and protracted litigation,

27

clear that despite the passage of time, they remain willing

28

and able to vigorously prosecute this action.

Buckland v. Maxim

Although this action has not progressed beyond the

- 66 -

In

makes it abundantly

1

In short, as with the other Rule 23(a) requirements, the court

2

finds that the adequacy requirement has been satisfied.

3

Having shown that all four elements of

4

to the pay claim, the next issue is whether this action

5

“fit[s] into one of the three categories described in

6

subdivision (b)[]” of Rule 23.

7

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct.

8

1431, 1437, 176 L.Ed.2d 311 (2010) (internal quotation marks

9

omitted)).

10
11

B.

Fed.R.Civ.P.

Rule 23(a) are met as

Shady Grove Orthopedic

23(b)(3)

As previously discussed, after Dukes, plaintiffs are

12

seeking class certification of their pay claim solely pursuant

13

to Rule 23(b)(3).

14

is designed for situations in which class-action treatment is

15

not as clearly called for.” Comcast, 133 S.Ct. at 1432

16

(internal quotation marks and citations omitted).

17

explains Congress’s addition of procedural safeguards for

18

(b)(3) class members beyond those provided for (b)(1) or

19

(b)(2) class members (e.g., an opportunity to opt out), and

20

the court’s duty to take a “‘close look’” at whether common

21

questions predominate over individual ones.”

22

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct.

23

2231, 138 L.Ed.2d 689 (1997)).

24

That Rule, “as an adventuresome innovation,

“That

Id. (quoting

Certification pursuant to Rule 23(b)(3) “is appropriate

25

‘whenever the actual interests of the parties can be served

26

best by settling their differences in a single action.’”

27

Hanlon, 150 F.3d at 1022 (quoting

28

Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure

- 67 -

7A Charles Alan Wright,

1

§ 1777 (2d ed.1986) (“Wright & Miller”).

The “only

2

prerequisites” for certification under Rule 23(b)(3) “are that

3

‘the questions of law or fact common to class members

4

predominate over any questions affecting only individual class

5

members, and that a class action is superior to other

6

available methods for fairly and efficiently adjudicating the

7

controversy.’” Dukes, 131 S.Ct. at 2558 (quoting

8

Fed.R.Civ.P.23(b)(3)).

9

superiority “are interrelated because ‘[i]mplicit in the

The questions of predominance and

10

satisfaction of the predominance test is the notion that the

11

adjudication of common issues will help achieve judicial

12

economy.’” York v. Starbucks Corp., 2011 WL 8199987, at *31

13

(C.D.Cal. Nov. 23, 2011) (quoting, inter alia, Valentino v.

14

Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)).
1.

15
16

Predominance

“[T]here is substantial overlap between” the test for

17

commonality under Rule 23(a)(2) and the predominance test

18

under 23(b)(3).

19

LLC, 617 F.3d 1168, 1172

20

anything, Rule 23(b)(3)’s predominance criterion is even more

21

demanding than Rule 23(a).”

22

(citing Amchem, 521 U.S. 591, 623-24, 117 S.Ct. 2231).

23

Consequently, “the presence of commonality alone is not

24

sufficient to fulfill Rule 23(b)(3).”

25

1022.

26

questions that qualify each class member’s case as a genuine

27

controversy.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231.

28

contrast to Rule 23(a)(2), “[t]he predominance analysis under

Wollin v. Jaguar Land Rover North America
(9th Cir. 2010).

However, “[i]f

Comcast, 133 S.Ct. at 1432

Hanlon, 150 F.3d at

The predominance inquiry “trains on legal or factual

- 68 -

In

1

Rule 23(b)(3) focuses on the relationship between the common

2

and individual issues in the case and tests whether proposed

3

classes are sufficiently cohesive to warrant adjudication by

4

representation.”

5

marks and citation omitted).

6

emphasized in Amgen, “Rule 23(b)(3) requires a showing that

7

questions common to the class predominate, not that those

8

questions will be answered, on the merits, in favor of the

9

class.”

Wang, 709 F.3d at 835 (internal quotation
As the Supreme Court recently

Amgen, 133 S.Ct. at 1191 (emphasis in original).

10

Hence, “the office of a Rule 23(b)(3) certification ruling is

11

not to adjudicate the case; rather, it is to select the

12

metho[d] best suited to adjudication of the controversy fairly

13

and efficiently.”

14

Id. (internal quotation marks omitted).

The Ninth Circuit recognizes that “‘there is clear

15

justification for handling the dispute on a representative

16

rather than an individual basis’ if ‘common questions present

17

a significant aspect of the case and they can be resolved for

18

all members of the class in a single adjudication[.]’” Mazza,

19

666 F.3d at 589 (quoting, inter alia, Hanlon, 150 F.3d at

20

1022).

21

the separate adjudication of each class member’s individual

22

claim or defense, . . . , a Rule 23(b)(3) action would be

23

inappropriate.’” Keegan, 284 F.R.D. at 256 (quoting, inter

24

alia, Zinser v. Accufix Research Institute, Inc., 253 F.3d

25

1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th

26

2001)). “This is because, inter alia, the economy and

27

efficiency of class action treatment are lost and the need for

28

judicial supervision and the risk of confusion are

In contrast, “‘if the main issues in a case require

- 69 -

Cir.

1

magnified.’” Id. (quoting Zinser, 253 F.3d at 1186).

2

must thus separate the issues subject to ‘generalized proof’

3

from those subject to ‘individualized proof’ to determine

4

whether plaintiffs have satisfied the predominance

5

requirement.”

6

“Courts

Ellis II, 285 F.R.D. at 537 (citation omitted).

The predominance analysis “‘begins . . .

with the

7

elements of the underlying cause of action.’” Stearns, 655

8

F.3d at 1020 (quoting Erica P. John Fund, Inc., v. Halliburton

9

Co., 563 U.S. ––––, ––––, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24

10

(2011)).

Here, plaintiffs are alleging that “Bashas’ two-

11

tiered

12

had a disparate impact on Hispanic Food City workers in

13

violation of Title VII and Section 1981.”

14

(Doc. 302) at 21:3-5.

15

issue[] . . . involves no individual questions[,]” plaintiffs

16

argue.

17

Plaintiffs further argue that the “only individual

18

determination to be made” –- the amount of back pay –- “does

19

not defeat class certification.”

20

Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089

21

(9th Cir. 2010)).

22

the Ninth Circuit in Parra II rejected Bashas’ argument that

23

“[t]he claimed difficulties in the calculations of damages, as

24

they affected the various class members . . . preclude[d]

25

class certification.” Parra II, 536 F.3d at 979.

26

more, just recently, the Ninth Circuit reaffirmed its long-

27

held view that “‘[t]he amount of damages is invariably an

28

individual question and does not defeat

wage policy constitutes disparate treatment and/or has

Pls.’ Supp. Br.

Resolution of that “central liability

Id. at 21:2-3; 21:5 (emphasis in original).

Id. at 21:6; 22:1 (citing

And, as plaintiffs are quick to point out,

- 70 -

What is

1

class action treatment.’” Leyva v. Medline Industries Inc.,

2

2013 WL 2306567, at *3 (9th Cir. May 28, 2013) (quoting

3

Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (other

4

citation omitted).

5

Perhaps because the Supreme Court in Dukes clarified that

6

“individualized monetary claims[,]” such as plaintiffs’ back

7

pay claims herein, “belong in Rule 23(b)(3)[,]” Dukes, 131

8

S.Ct. at 2558, Bashas’ agrees that individual damage issues

9

alone do not defeat class certification under that Rule.

See

10

Stearns, 655 F.3d at 1026 (citing Yokoyama, 594 F.3d at 1094)

11

(“We have held that the mere fact that there might be

12

differences in damage calculations is not sufficient to defeat

13

class certification.”)

14

plaintiffs have not established predominance because

15

“[q]uestions regarding liability would require . . . highly

16

fact-specific inquiries regarding whether or not the

17

Plaintiffs’ alleged discriminatory pay . . . w[as] the result

18

of discrimination or some other, non-discriminatory factor.”

19

Def.’s Supp. Br. (Doc. 301) at 19:26-20:1.

20

based upon two faulty assumptions – one pertaining to the

21

nature of plaintiffs’ pay claim and the other to the proof in

22

that regard.

23

Nonetheless, Bashas’ insists that

This argument is

Although plaintiffs have explicitly renounced their

24

Subjective Placement claim, Bashas’ still insists that

25

plaintiffs’ pay claim involves “subjective decision-making[]”

26

where “individual store managers, acting at their own

27

discretion, decided where to place employees on the wage

28

scale.”

Def.’s Resp. (Doc. 304) at 7:19 (citations omitted);

- 71 -

1

6:22-23 (emphasis added).

From Bashas’ standpoint, the

2

exercise of that discretion “set the employees’ wage history

3

in motion, and it is a key issue in this case.”

4

25.

5

posits that defending such a claim would involve assessing

6

“numerous . . . subjective decisions regarding placement of

7

members, in the proposed class, on the pay scales.”

8

8:13-15. Such an assessment is incompatible with a finding of

9

predominance in Bashas’ view.

Id. at 6:23-

Characterizing plaintiffs’ pay claim in that way, Bashas’

Id. at

10

Perhaps Bashas’ argument would have some validity if

11

plaintiffs were still pursuing their Subjective Placement

12

claim, but they are not.

13

plaintiffs’ pay claim is based strictly on Bashas’ wage

14

scales, and is independent of their foregone Subjective

15

Placement claim.

16

of that Subjective Placement claim is not germane to the issue

17

of whether common issues predominate with respect to

18

plaintiffs’ pay claim,

19

scales.

At the risk of repetition,

Thus, the ostensibly individualized nature

predicated solely upon Bashas’ wage

20

The second faulty assumption under which Bashas’ is

21

operating is that “[p]laintiffs have not produced any actual

22

evidence that Bashas’ operated under a single, common policy

23

of discrimination.”

24

As discussed with respect to commonality, plaintiffs have

25

identified a specific employment policy, i.e., Bashas’ wage

26

scales, which have caused a pay disparity.

27

F.R.D. at 538 (finding predominance where “[p]laintiffs . . .

28

presented significant proof that Costco operates under a

Def.’s Supp. Br. (Doc. 301) at 20:2-3.

- 72 -

See Ellis II, 285

1

common, nationwide promotion system for [certain] positions

2

and have identified specific employment practices that have

3

caused a disparity in promotions[]”).

4

plaintiffs contend that Bashas’ wage scales are

5

“discriminatory, both under a disparate treatment and a

6

disparate impact theory[,] . . . [r]esolution of Plaintiffs’

7

challenge to those [wage scales] will resolve significant

8

issues with respect to the class as a whole and this dwarfs

9

the individualized issues[.]”

Further, because

See id. (citing Stinson v. City

10

of New York, 282 F.R.D. 360, 382 (S.D.N.Y. 2012) (“‘Class-wide

11

issues predominate if resolution of some of the legal or

12

factual questions that qualify each class member’s case as a

13

genuine controversy can be achieved through generalized proof,

14

and if these particular issues are more substantial than the

15

issues subject only to individualized proof.’”) (quoting Moore

16

v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)).

17

More closely considering plaintiffs’ specific theories of

18

liability, disparate treatment and disparate impact, yields

19

the same result.

20

the reasoning in Ellis II.

21

disparate treatment claim, the court explained:

On that point, the court finds persuasive
There, with respect to the

whether Defendant has engaged in a
pattern or practice of discrimination
such that all class members are entitled
to a presumption of discrimination under
the Teamsters method of proof38 is a common

22
23
24
25
38

26
27
28

“As the Supreme Court reaffirmed in Dukes, pattern-or-practice
cases alleging disparate treatment under Title VII typically follow a
bifurcated, burden-shifting structure laid out by Int’l Broth. of Teamsters
v. United States, 431 U.S. 324 (1977):
We have established a procedure for trying
pattern-or-practice cases that gives effect to
[Title VII's] statutory requirements. When the

- 73 -

issue subject to classwide resolution. This
‘pattern and practice question predominates
because it has a direct impact on every
class member’s effort to establish liability
and on every class member’s entitlement
to . . . monetary relief.’ Ingram v. The
Coca–Cola Co., 200 F.R.D. 685, 699
(N.D.Ga. 2001) (certifying (b)(3) class of
plaintiffs alleging a pattern or practice
of race discrimination in employment under
Teamsters framework); see also Williams
v. Mohawk Indus., Inc., 568 F.3d 1350,
1357 (11th Cir. 2009) (“Common issues of fact
and law predominate if they ha[ve] a direct
impact on every class member’s effort to
establish liability and on every class
member’s entitlement to injunctive
and monetary relief.”) (internal citations
and quotation marks omitted).

1
2
3
4
5
6
7
8
9
10
11

Ellis II, 285 F.R.D. at 538 (footnote added).

12

court similarly explained as to plaintiffs’ disparate impact

13

claim:

14
15
16
17
18

The Ellis II

whether Defendant’s facially neutral
policies and practices have a disparate
impact on class members, and whether those
practices are nonetheless justified by
business necessity, are similarly
issues best addressed with respect to
the entire class. . . . Adjudicating these
issues on a classwide basis is necessary before
any individualized proceeding can occur.

19

Id. (citations and footnote omitted).

Adopting that

20

rationale, the court finds that the common questions regarding

21

liability as to the pay claim are “a significant aspect of

22
23
24
25
26
27

plaintiff seeks individual relief such as
reinstatement or backpay after establishing a pattern
or practice of discrimination, a district court
must usually conduct additional proceedings . . .
to determine the scope of individual relief. . . .
At this phase, the burden of proof will shift to the
company, but it will have the right to raise any
individual affirmative defenses it may have, and to
demonstrate that the individual applicant was
denied an employment opportunity for lawful reasons. . . .

28
Ellis II, 285 F.R.D. at 505 (quoting Dukes, 131 S.Ct. at 2552 n. 7)
(internal quotations and citations omitted).

- 74 -

1

th[is] case and they can be resolved for all members of the

2

class in a single adjudication[.]” See Mazza, 666 F.3d at 589

3

(internal quotation marks and citations omitted).

4

Before addressing superiority, the court also must

5

consider

whether plaintiffs’ damages can be determined on a

6

classwide basis.

7

standard for evaluating certification” requires a showing

8

“that damages are capable of measurement on a classwide

9

basis[]”).

See Comcast, 133 S.Ct. at 1432

In Comcast,

(“the proper

an antitrust action, the district

10

court accepted one of plaintiffs’ four theories of antitrust

11

impact, but rejected the other three theories.

12

limitation, the plaintiffs relied on a regression model that

13

“did not isolate damages resulting from any one theory of

14

antitrust impact.” Comcast, 133 S.Ct. at 1431).

15

Despite that

Both the district court and the Third Circuit declined to

16

entertain the defense argument challenging plaintiffs’

17

regression model because “those arguments would also be

18

pertinent to the merits determination[.]” Id. at 1433.

19

Finding “[t]hat reasoning to flatly contradict[]” prior

20

Supreme Court precedent, and Dukes in particular, the Court

21

reversed the class certification order.

22

omitted).

23

Circuit for “simply conclud[ing] that respondents provided a

24

method to measure and quantify damages on a classwide basis,”

25

without deciding whether the methodology [was] a just and

26

reasonable inference or speculative.”

27

marks and citation omitted)

28

Id.

(citation

In reversing, the Comcast Court chastised the Third

Id. (internal quotation

In the present case, unlike Comcast, plaintiffs’

- 75 -

1

methodology (although not fully developed39) for calculating

2

back pay demonstrates that such damages are “capable of

3

measurement on a classwide basis.

4

1433.

5

[Bashas’] liability, damages will be calculated based on the

6

wages each employee lost due to [Bashas’] unlawful practices.”

7

See

8

liable, it strikes the court, as the plaintiffs urge, that the

9

back pay determination “is a purely mechanical process[.]”

See Comcast, 133 S.Ct. at

“Here, unlike Comcast, if putative class members prove

Leyva, 2013 WL 2306567, at *3.

If Bashas’ is found

10

Pls.’ Supp. Br. (Doc. 302) at 21:7.

Furthermore, through a

11

computer program, and relying upon “objective factors” such as

12

“the individual employee payroll record (dates of employment

13

job position, hours worked) and the wage scale,” which is part

14

of the record, the plaintiffs will be able to calculate back

15

pay losses for “each eligible class member[.]” Id. at 21:15-

16

18.

17

there was in Comcast, that “[q]uestions of individual damages

18

calculations will inevitably overwhelm questions common to the

19

class[]”.

20

in sharp contrast to Comcast, at least at this point,

21

plaintiffs’ methodology for calculating back pay correlates

22

the “legal theory of the harmful event” with “the economic

23

impact of that event.

24

marks, emphasis and citation omitted).

Under this projected scenario, there is no concern, as

See Comcast, 133 S.Ct. at 1433.

In addition, also

See id. at 1435 (internal quotation
Having found

25
39

26
27
28

Plaintiffs “anticipate having an expert witness present” their
backpay “analysis[,]” consisting of “a mathematical calculation conducted
for each eligible class member to determine individual back pay losses.”
Pls.’ Supp. Br. (Doc. 302) at 21:17-19 (emphasis in original). The court
cannot fault plaintiffs for not having provided such an analysis in
conjunction with their prior filings, as they did not have the benefit, nor
could they have anticipated at that time, the Supreme Court’s March 27,
2013 Comcast decision.

- 76 -

1

predominance, it is necessary to consider superiority, the

2

second Rule 23(b)(3) element.
2.

3
4

Superiority

“‘[T]he purpose of the superiority requirement is to

5

assure that the class action is the most efficient and

6

effective means of resolving the controversy.’”

7

Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1175 (9th

8

Cir. 2010) (quoting

9

Valentino v. Carter–Wallace, Inc., 97 F.3d 1227, 1234 (9th

10

Cir. 1996) (Superiority tests whether “class litigation of

11

common issues will reduce litigation costs and promote greater

12

efficiency.”)

13

requires determination of whether the objectives of the

14

particular class action procedure will be achieved in the

15

particular case.”

16

omitted).

17

comparative evaluation of alternative mechanisms of dispute

18

resolution.”

19

“[d]istrict courts are in the best position to consider the

20

most fair and efficient procedure for conducting any given

21

litigation, . . . , and so must be given wide discretion to

22

evaluate superiority[.]”

23

quotation marks and citations omitted).

24

Wolin v.

Wright & Miller, § 1779 at 174); see also

“The superiority inquiry under Rule 23(b)(3)

Hanlon, 150 F.3d at 1023 (citation

In turn, that inquiry “necessarily involves a

Id.

The Ninth Circuit recognizes that

Bateman, 623 F.3d at 712 (internal

Plaintiffs offer two reasons as to why

“[c]lass

25

treatment is clearly the superior method for adjudicating the

26

pay claims.”

27

certification would be less costly and more efficient.

28

Second, most of the putative class members “lack the

Pls.’ Supp. (Doc. 302) at 22:20.

- 77 -

First, class

1

resources” to fund this litigation, and so would be “deterred

2

or prevented” from pursuing their discrimination claims.

3

at 22:25-26.

Id.

4

Conversely, Bashas’ asserts that plaintiffs have not

5

shown superiority because, first of all, there are only a

6

“limited number of allegedly affected named plaintiffs and

7

class members[.]” Def.’s Supp. Br. (Doc. 301) at 20:11-12.

8

Supposedly, superiority also cannot be shown because putative

9

class members “retain[] a strong incentive to bring their

10

claims individually[.]” Id. at 20:13-14.

11

back to its familiar refrain that this lawsuit involves

12

“thousands of highly-individualized factual inquiries[,]”

13

Bashas’ contends that is another reason why Rule 23(b)(3)

14

certification is “inappropriate.”

15

Finally, harkening

Id. at 20:18-19.

Class action in accordance with Rule 23(b)(3) is the

16

superior method of adjudicating plaintiffs’ claims, despite

17

what Bashas’ argues.

18

plaintiffs accurately point out, each individual employee will

19

have to

20

two-tiered wage policy, that the policy . . .

21

disproportionately impacted Hispanic Food City employees,

22

and/or that the policy constituted disparate treatment based

23

upon national origin.” Pls.’ Supp. (Doc. 302) at 22:21-25.

24

Plainly, “[i]t is far more efficient to litigate” these

25

fundamental liability issues “on a classwide basis rather than

26

in thousands of individual and overlapping lawsuits.”

27

Wolin, 617 F.3d at 1176 (Rule 23(b)(3) class certification

28

proper in an “automobile-wear” case alleging “single,

Without class certification, as

separately “prove . . . that [Bashas’] maintained a

- 78 -

See

1

defective alignment geometry[]” where “issues common to all

2

class members . . . can be litigated together[]”); see also

3

Jordan v. Paul Financial, LLC, 285 F.R.D. 435, 467 (N.D.Cal.

4

2012) (internal quotation marks and citation omitted) (“[A]

5

single action would be superior to maintaining a multiplicity

6

of individual actions involving similar legal and factual

7

issues.”)

8

individual[s] . . . to litigate their cases, particularly

9

where common issues predominate for the proposed class, is an

10
11

As the Ninth Circuit reasoned in Wolin, “[f]orcing

inferior method of adjudication.”

Wolin, 617 F.3d at 1176.

Further, in the present case, much like Wolin, “[p]roposed

12

class members face the option of participating in this class

13

action, or filing hundreds of individual lawsuits that could

14

involve duplicating discovery and costs that [potentially]

15

exceed the extent of proposed class members’ individual

16

injuries.”

17

precise reason for Rule 23(b)(3) class certification.

18

Amchem, 521 U.S. at

19

Committee’s Notes on Rule 23(b)(3)) (that Rule is intended “to

20

cover cases ‘in which a class action would achieve economies

21

of time, effort, and expense, and promote . . . uniformity of

22

decision as to persons similarly situated, without sacrificing

23

procedural fairness or bringing about other undesirable

24

results.’”); see also York, 2011 WL 8199987, at *33 (citations

25

omitted)(“Typically, a class action is superior if the case

26

presents a large volume of individual claims that could strain

27

judicial resources if tried separately and if each potential

28

plaintiff's recovery may not justify the cost of individual

See id.

Avoiding that latter scenario is the
See

615, 117 S.Ct. 2231 (quoting Advisory

- 79 -

1

litigation.”) Indeed, the Ninth Circuit has consistently held

2

that “[w]here recovery on an individual basis would be dwarfed

3

by the cost of litigating on an individual basis, this factor

4

weighs in favor of class certification.”

5

1175 (citing Zinser, 253 F.3d at 1189; Hanlon, 150 F.3d at

6

1023).

7

Wolin, 617 F.3d at

Neither the supposedly “limited number” of potential class

8

members, or their assertedly “strong incentive” to

9

individually pursue their claims persuades the court that Rule

10

23(b)(3) is not the proper vehicle for plaintiffs to litigate

11

their claims. See Def.’s Supp. Br. (Doc. 301) at 20:11; and at

12

20:13.

13

superiority is that there are a “limited number” of putative

14

class members.

15

that point is troubling given its prior assertion that

16

plaintiffs are “seek[ing] to certify a class of at least

17

10,000[.]” Id. at 11:16.

18

hardly seems “limited,” especially considering that it is

19

based upon a “very modest assumption” of industry-wide

20

“turnover rates[.]” Id. at 11:17-18.

21

both ways; it cannot argue, in essence, that the class is too

22

large for commonality purposes, but not for superiority.

23

Bashas’ initial argument against a finding of

Id. at 20:11.

Bashas’ failure to elucidate on

Moreover, that ten thousand figure

Bashas’ cannot have it

Additionally, in holding that numerosity had been shown

24

here, this court previously found, and Bashas’ did not

25

dispute, that the putative class has “thousands of members[.]”

26

See Parra I, 2005 WL 6182338, at *14 (citing Mot. (Doc. 159)

27

at 18 [(“Bashas’ has employed between 3000 and 4440 Hispanic

28

workers in hourly positions in the Food City stores in each

- 80 -

1

year since 2000.)”]; Decl’n Drogin (Doc. 160) at Exhbt. 1.)

2

Hence, the number of potential class members does not render

3

Rule 23(b)(3) certification improper.

4

Likewise, the court is not convinced by Bashas’

5

“incentive” argument.

Def.’s Supp. Br. (Doc. 301) at 20:13.

6

Bashas’ postulates that plaintiffs have not shown superiority

7

because the putative class members “retain[] a strong

8

incentive to bring their claims individually,” otherwise, they

9

“risk being precluded from asserting individual claims for

10

compensatory damages of up to $300,000,40 limited by the

11

applicable statutory cap, if they choose to ‘tie their fates

12

to the class representatives.’” Id. at 20:13-17 (quoting

13

Dukes, 131 S.Ct. at 2559).

14

critical distinction between Dukes and the present case.

15

Once again, Bashas’ overlooks a

The concern in Dukes was that the strategy of including

16

only backpay claims “created the possibility . . . that

17

individual class members’ compensatory-damages claims would be

18

precluded by litigation they had no power to hold themselves

19

apart from.”

20

The Court explained:

Dukes, 131 S.Ct. at 2559 (emphasis in original).

If it were determined, for example, that
a particular class member is not entitled
to backpay because her denial of increased
pay or a promotion was not the product
of discrimination, that employee might
be collaterally estopped from independently
seeking compensatory damages based on
that same denial. That possibility underscores
the need for plaintiffs with individual
monetary claims to decide for themselves

21
22
23
24
25
26
27
28

40

Section 1981a(b)(3) imposes a statutory limitation on, among
other types of damages, compensatory and punitive damages in Title VII
suits against employers with more than 500 employees.
Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1200 (9th Cir. 2002); 42 U.S.C.
§ 1981a(b)(3)(D).

- 81 -

whether to tie their fates to the
class representatives’ or go it alone-a
choice Rule 23(b)(2) does not ensure that they
have.

1
2
3
4

Id. (italicized emphasis in original) (bold emphasis added).

5

Those concerns are absent here.

6

which is mandatory, a Rule 23(b)(3) class contains an opt-out

7

provision.

8

is the sole basis for certifying plaintiffs’ pay claim.

9

Therefore, as a result of

Unlike a Rule 23(b)(2) class,

See Fed.R.Civ.P. 23(c)(2)(B)(v).

That latter Rule

Rule 23(b)(3)’s opt-out mechanism,

10

there is no risk, as there was in Dukes, where certification

11

was sought pursuant to Rule 23(b)(2), of depriving a putative

12

class member in this case of the opportunity of proceeding

13

with his or her own individual monetary claims.
Lastly, Bashas’ argument that a class action is not a

14
15

superior method of adjudicating the pay claims because it

16

“would require thousands of highly-individualized factual

17

inquiries,” rings hollow given the nature of those claims and

18

the relief sought, as previously discussed.

19

Br. (Doc. 301) at 20:18-19.

20

just discussed, the court finds that certification of a class

21

pursuant to Fed.R.Civ.P. 23(b)(3) with respect to plaintiffs’

22

pay claim satisfies the most fundamental test for superiority

23

-– “maintenance of this litigation as a class action is

24

efficient and . . . it is fair.”

25

76.

See Def.’s Supp.

Consequently, for the reasons

See Wolin, 617 F.3d at 1175-

26

C.

27

An examination of predominance and superiority involves

28

Fed.R.Civ.P. 23(b)(3)(A)-(D)

additional considerations.

“In evaluating predominance and

- 82 -

1

superiority, the Court must consider: (1) the extent and

2

nature of any pending litigation commenced by or against the

3

class involving the same issues; (2) the interest of

4

individuals within the class in controlling their own

5

litigation; (3) the convenience and desirability of

6

concentrating the litigation in a particular forum; and (4)

7

the manageability of the class action.”41

8

USA, Inc., 283 F.R.D. 558, 567 (S.D.Cal. 2012)(citing

9

Fed.R.Civ.P. 23(b)(3)(A)–(D); Amchem, 521 U.S. at 615-16, 117

Beck-Ellman v. Kaz

10

S.Ct. 2231)) (emphasis added).

These factors “‘require[] the

11

court to focus on the efficiency and economy elements of the

12

class action so that cases allowed under subdivision (b)(3)

13

are those that can be adjudicated most profitably on a

14

representative basis.’” Zinser, 253 F.3d at 1190 (quoting 7A

15

Wright & Miller, § 1780 at 562). The application of four

16

enumerated factors, which the parties largely ignored,

17
18
19
20
21
22
23
24
25

41

The Ninth Circuit in Bateman, was confronted with the issue of
whether Rule 23(b) “authorizes a court to consider whether certifying a
class would result in disproportionate damages.” Bateman, 623 F.3d at 713.
Because Rule 23(b)(3) “provide[d] little, if any guidance, on” that issue,
the Court recognized the propriety of expanding the inquiry thereunder to
include factors not listed in Rule 23(b)(3)(A)-(D):
Superiority must be looked at from the point of
view (1) of the judicial system, (2) of the
potential class members, (3) of the present plaintiff,
(4) of the attorneys for the litigants, (5) of
the public at large and (6) of the defendant. The
listing is not necessarily in order of importance
of the respective interests. Superiority must also
be looked at from the point of view of the issues.

26 Id. (quotation marks and citations omitted). Here, there is no need for the
court to delve into those non-listed factors because, first of all, a
See id.
(emphasis added) (“A court may consider, other, non-listed factors[]” in
28 deciding whether to certify a class under Rule 23(b)(3).) Second, in
contrast to Bateman, the listed Rule 23(b)(3) factors encompass the concerns
relevant here to class certification thereunder.

27 consideration of those factors is discretionary, not mandatory.

- 83 -

1

buttresses the finding that Rule 23(b)(3)’s predominance and

2

superiority requirements are met here.
The first factor considers the interest of each member in

3
4

“individually controlling the prosecution or defense of

5

separate actions[.]”

6

“common questions affecting the class as a whole at the

7

liability stages of this matter, and given [the putative]

8

class members’ ability to opt out [,]” the putative class

9

members in the present case “have a diminished interest in

Fed.R.Civ.P. 23(b)(3)(A). Given the

10

individually controlling the common portions of this action.”

11

See Ellis II, 285 F.R.D. at 539-540.
Further, “[w]here damages suffered by each putative class

12
13

member are not large, this factor weighs in favor of

14

certifying a class action.”

15

(citation omitted).

16

core of the class action mechanism is to overcome the problem

17

that small recoveries do not provide the incentive” for

18

individuals to bring claims.

19

Here, the FAC does not allege the specific amount of damages

20

sought, and the plaintiffs have given no indication as to

21

whether those damages are sizeable or not.

22

Ninth Circuit estimated that the “hourly disparities

23

translate[d] to annual salary differences of around $300 per

24

year to almost $6,000 per year.”

25

977.

26

both of these reasons, the first factor weighs in favor of

27

class certification.

28

Zinser, 253 F.3d at 1190

That is because the policy “at the very

Amchem Prods., 521 U.S. at 617.

In Parra II, the

See Parra II, 536 F.3d at

Recoveries in that range are relatively modest.

The second factor is “the extent and nature of any

- 84 -

For

1

litigation concerning the controversy already begun by or

2

against class members[.]”

3

Arguably, E.E.O.C. v. Bashas’, Inc., No. CIV 09-0209 PHX RCB,

4

wherein the EEOC is seeking to enforce an administrative

5

subpoena against Bashas’, fits the definition of such

6

litigation.

7

Bashas’ has vigorously challenged, is “part of the EEOC’s

8

“ongoing investigation into whether Bashas’ has engaged in

9

discrimination against its Hispanic employees on the basis of

Fed.R.Civ.P. 23(b)(3)(B).

The EEOC’s subpoena, the enforcement of which

10

national origin with respect to wages and promotions.”

11

E.E.O.C. v. Bashas’, Inc., 828 F.Supp.2d 1056, 1059 (D.Ariz.

12

2011) (internal quotation marks and citation omitted).

13
14
15

The parties are fully aware of that action as they have
participated either directly or indirectly in that litigation.
For now, the details are not important; suffice it to say

16

that that case is pending in the Ninth Circuit Court of

17

Appeals.

18

infancy, and the court would have to speculate as to how that

19

action might, at some future date, impact the present case, it

20

finds that the second factor also weighs in favor of class

21

certification.

22

Given that Bashas’ EEOC action is in its relative

The third factor, “the desirability or undesirability of

23

concentrating the litigation of the claims in the particular

24

forum[,]” also augurs in favor of class certification.

25

Fed.R.Civ.P. 23(b)(3)(C). “Here, there is no reason to believe

26

that concentrating this action in this Court is undesirable,”

27

especially because “the proposed []class is composed of only

28

[Arizona] . . . employees.”

See

See York, 2011 WL 8199987, at

- 85 -

1
2

*33.
The fourth and final factor considers “the likely

3

difficulties in managing a class action.”

Fed.R.Civ.P.

4

23(b)(3)(D).

5

of class action treatment outweigh the benefits of considering

6

common issues in one trial[.]”

7

(citations omitted).

8

not the superior method of adjudication.”

9

quotation marks and citations omitted).

This factor looks to whether “the complexities

Zinser, 253 F.3d at 1192

If they do, “class action treatment is
Id. (internal
This balancing test

10

“encompasses the whole range of practical problems that may

11

render the class format inappropriate for a particular suit.”

12

Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 164, 94 S.Ct.

13

2140, 40 L.Ed.2d 732 (1974).

14

At this juncture, and without the parties’ input, it is

15

difficult to conceive how the complexities of class

16

certification here would outweigh the benefits. Cf. In re:

17

Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 140

18

(2nd Cir. 2001) (Sotomayor, J.) (“[F]ailure to certify an

19

action under Rule 23(b)(3) on the sole ground that it would be

20

unmanageable is disfavored, and should be the exception rather

21

than the rule.”)

22

favors class certification pursuant to Rule 23(b)(3).

23

some point the pay claim does become unmanageable as a class

24

action, which the court does not anticipate, the court

25

“retains the flexibility to address problems with a certified

26

class as they arise, including the ability to decertify.”

27

United Steel Workers, 593 F.3d at 807.

28

The court thus finds that this factor, too,
If at

Overall, based upon the foregoing, the court finds that

- 86 -

1

the named plaintiffs’ pay claim is properly certified pursuant

2

to Rule 23(b)(3).

3

however, because although it previously certified plaintiffs’

4

working condition claim, the propriety of that certification

5

has become an issue after Dukes.

6

II.

7

The court’s analysis does not end here,

Working Conditions Claim42
Rule 23(b)(2) provides in relevant part that if the

8

elements of Rule 23(a) are met, and if “the party opposing the

9

class has acted or refused to act on grounds that apply

10

generally to the class, so that final injunctive relief or

11

corresponding declaratory relief is appropriate respecting the

12

class as a whole[,] [a] class may be maintained[.]”

13

Civ. P. 23(b)(2).

14

court certified a class as to working conditions comprised of:

Fed. R.

Pursuant to that Rule, in Parra I, this

All Hispanic workers employed by defendant in
an hourly position at any Food City retail store
since April 4, 1998, who have been or may be subject
to the challenged disparate working conditions.

15
16
17
18

Parra I, 2005 WL 6182338, at *22.

Bashas’ appealed only the

19

denial of class certification as to the pay claim, leaving

20

undisturbed the certification of the working conditions claim.

21

A.

Decertification

22

Now, based upon Dukes’ “newly clarified commonality

23
24
25
26
27
28

42

Plaintiffs imply that Bashas’ disregarded this court’s order by
addressing the working conditions claim in its supplemental briefs. While
setting the post-Dukes briefing schedule, however, Bashas’ explicitly
inquired as to the propriety of “rais[ing] the issue of reconsideration of
[this court’s prior] certification of [the] store conditions” claim, or
whether the court wanted that issue addressed separately. Tr. (June 27,
2011) at 10:42:09 a.m. - 10:42:16 a.m. The court responded that it would
not “preclude” Bashas’ from raising that claim in the supplemental briefs.
Tr. (June 27, 2011) at 10:42:26 - 10:42: 26 a.m. Consequently, the issue
of the continued certification of the working conditions claim is properly
before the court.

- 87 -

1

standard,” Def.’s Resp. (Doc. 304) at 6:1-2, Bashas’ “requests

2

that the Court

3

of the working conditions claim.

4

at 20:22-23.

5

certif[ication]” of the working conditions claim, however, as

6

will soon become evident.

7

(emphasis added).

reconsider . . . and deny” class certification
Def.’s Supp. Br. (Doc. 301)

Bashas’ response more accurately requests “de-

Def.’s Resp. (Doc. 304) at 8:20

8

Interpreting Bashas’ request as strictly one for

9

reconsideration, plaintiffs argue that it is “untimely[.]”

10

Pls.’ Reply (Doc. 303) at 10:10.

11

argument.

12

that Bashas’ did not appeal class certification of the working

13

conditions claim pursuant to Fed.R.Civ.P. 23(f).

14

allows a party, within 14 days after entry of the class

15

certification order, to file with the court of appeals a

16

petition for permission to appeal the granting or denying of

17

class certification.

18

separate and distinct from filing a reconsideration or

19

decertification motion, however.

20

did not avail itself of Rule 23(f), it does not follow, as

21

plaintiffs’ so strongly imply, that Bashas’ current request is

22

untimely.

23

Neither is meritorious.

There are two prongs to this
First, plaintiffs note

That Rule

The filing of a Rule 26(f) petition is

Therefore, although Bashas’

Second, plaintiffs baldly assert that

Bashas’ “did not

24

. . . timely” move “for reconsideration[.]” Id. at 10:7. Even

25

if the court were to agree,43 it would not preclude Bashas’

26
43

27
28

LRCiv 7.2(g)(2) provides that “[a]bsent good cause shown, any
motion for reconsideration shall be filed no later than fourteen (14) days
after the date of the filing of the Order that is the subject of the
motion.” LRCiv 7.2(g)(2). Bashas’ did not seek reconsideration within 14
days after the filing of Parra I, and evidently that is the basis for
plaintiffs’ untimeliness argument. Of course, such an argument presumes

- 88 -

1

from requesting decertification now.

Bashas’ request is

2

timely given the considerable latitude a district court has to

3

revisit the class certification issue.

4

decertify a class at any time.”

5

Corp., 563 F.3d 948, 966 (9th

6

(citing Falcon, 457 U.S. at 160, 102 S.Ct. 2364)

7

of Civil Procedure 23(c)(1)(C) embodies that latitude:

8

order that grants or denies class certification may be altered

9

or amended before final judgment.”

“A district court may

Rodriguez v. West Publ’g

Cir. 2009)(emphasis added)

Fed.R.Civ.P.

Federal Rule
“An

23(c)(1)(C).

10

Such an order is, therefore, “inherently tentative.” Coopers &

11

Lybrand v. Livesay, 437 U.S. 463, 469 n. 11, 98 S.Ct. 2454, 57

12

L.Ed.2d 351 (1978).

13

flexibility to address problems with a certified class as they

14

arise, including the ability to decertify.”

15

Workers, 593 F.3d at 809 (emphasis added).

16

Thus, “[a] district court retains the

United Steel

This flexibility extends “‘[e]ven after a certification

17

order is entered[.]’” Id. (quoting Falcon, 457 U.S. at 160,

18

102 S.Ct. 2364) (other citations omitted).

19

provides district courts with broad authority at various

20

stages in the litigation to revisit class certification

21

determinations and to redefine or decertify classes as

22

appropriate.”

23

Davis, 275 F.3d 849, 871 n. 28 (9th Cir. 2001), abrogated on

24

other grounds by Johnson v. California, 543 U.S. 499, 504–05,

Wang, 709 F.3d at 836 (citing

Thus, “Rule 23

Armstrong v.

25
26
27
28

the absence of “good cause.” In all likelihood, such a presumption is not
warranted here, however, because Dukes was decided more than five years
And, LRCiv 7.2(g)(1) allows for the possibility of
after Parra I.
reconsideration, inter alia, based upon a showing of “new . . . legal
authority that could not have been brought to [the court’s] attention
earlier.”
So even if the court were to treat Bashas’ motion as one for
reconsideration, a strong argument could be made that it is untimely.

- 89 -

1

125 S.Ct. 1141, 160 L.Ed.2d 949 (2005)) (emphasis added).

2

Indeed, somewhat presciently, relying upon Armstrong, Parra I

3

recognized that flexibility.

4

*14.

5

Bashas’ request for decertification of the working conditions

6

class, post-Dukes, as the foregoing shows.

7

See Parra I, 2005 WL 6182338, at

The passage of time, therefore, is not a barrier to

The parties fundamentally disagree as to whether Dukes

8

affects certification of that class.

Plaintiffs argue that

9

Dukes “has no impact[,] Pls.’ Supp. Brief (Doc. 302) at 24:28,

10

whereas Bashas’ contends that plaintiffs should not be allowed

11

to “maintain” their working conditions claim because

12

commonality, as

13

Def.’s Supp. Br. (Doc. 301) at 15:22.

articulated in Dukes, is missing here.

14

B.

Standing

15

The court is not at liberty to address that conflict

16

without resolving the prefatory issue of standing, although

17

the parties did not.

18

939, 954 (9th Cir. 2011) (internal quotation marks and

19

citations omitted) (“[F]ederal courts are required sua sponte

20

to examine jurisdictional issues such as standing.”)

21

that ‘Rule 23’s requirements must be interpreted in keeping

22

with Article III constraints[]’” the court must determine

23

whether named plaintiffs, Estrada and Martinez

24

to bring the working conditions claim.

25

Research, Inc., 2012 WL 5877579, at *6 (N.D.Cal. Nov. 20,

26

2012) (quoting Amchem, 521 U.S. at 613, 117 S.Ct. 2231); and

27

In re Abbott Labs. Norvir Antitrust Litig., 2007 WL 1689899,

28

at *2 (N.D.Cal. June 11, 2007) (“[I]t is ‘well-settled that

See Pier 1 Imports (U.S.) Inc., 631 F.3d

- 90 -

“Mindful

have standing

See Evans v. Linden

1

prior to the certification of a class, and technically

2

speaking before undertaking any formal typicality or

3

commonality review, the district court must determine that at

4

least one named class representative has Article III standing

5

to raise each class subclaim.’”) (quoting Wooden v. Bd. of

6

Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1287–88 (11th

7

Cir. 2001)).

8

Standing is an issue because, as plaintiffs stress, they

9

are seeking “only injunctive relief” in connection with their

10

working conditions claim, Pls.’ Supp. Br. (Doc. 302) at 25:20

11

(emphasis in original); but, plaintiff Estrada, as a former

12

Food City employee,44 lacks standing to sue for injunctive

13

relief against his former employer.

14

of Human Resources, 471 F.3d 1033, 1036, 1037 (9th Cir. 2006)

15

(former employee, who gave no indication in the complaint that

16

she was interested in returning to work for her former

17

employer, did not have standing to request injunctive relief

18

to force that former employer to “adopt and enforce lawful

19

policies regarding discrimination based on disability[]”); see

20

also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th

21

Cir. 1999) (“Unless the named plaintiffs are themselves

See Walsh v. Nevada Dept.

22
23
24
25
26
27
28

44

There is a discrepancy between the FAC and plaintiff Estrada’s
declaration in support of class certification in terms of his employment
status. The FAC, filed March 11, 2004, alleges that plaintiff Estrada “is
employed by . . . Bashas’ at a Food City Store.” FAC (Doc. 116) at 3:4-5,
¶ 7 (emphasis added).
Estrada’s declaration filed September 27, 2004,
explicitly declares, however, that he “worked at the Food City store . . .
from April 1999 until July 2002.” Estrada Decl’n (Doc. 176) at 1:23-24,
¶ 1 (emphasis added). Given that unequivocal declaration, presumably the
FAC inadvertently alleges that Mr. Estrada was employed at a Food City
store in March, 2004. Thus, especially given that in Parra I this court
relied upon that declaration for Estrada’s employment status, and that
finding has never been challenged, the court will continue to treat him as
a former Food City employee. See Parra I, 2005 WL 6182338, at *17.

- 91 -

1

entitled to seek injunctive relief, they may not represent a

2

class seeking that relief.”).

3

Plaintiff Estrada’s lack of standing does not foreclose

4

plaintiffs from pursuing their working conditions claim, so

5

long as plaintiff Martinez has standing.

6

F.3d at 1021 (internal quotation marks and citations omitted)

7

(“In a class action, standing is satisfied if at least one

8

named plaintiff meets the requirements.”); see also Ellis I,

9

657 F.3d at 979 (“Because only one named Plaintiff must meet

10

the standing requirements, the district court did not err in

11

finding that Plaintiffs have standing.”) Again presuming that

12

she still is a Food City hourly employee, plaintiff Martinez

13

has standing to represent the Rule 23(b)(2) injunctive relief

14

class as to working conditions.

15

(“[O]nly current employees have standing to seek injunctive

16

relief.”

17

2559–60)).45

18

C.

19

Having found that one named plaintiff – Aurelia Martinez –

See Stearns, 655

See Ellis I, 657 F.3d at 987

Ellis I, 657 F.3d at 988 (citing Dukes, 131 S.Ct. at

Governing Legal Standards

20

has standing as to the working conditions claim, the court can

21

now turn to the issue of possible decertification of that claim

22
23
24
25
26
27
28

45

In contrast to standing, Title VII exhaustion is a pre-condition
to bringing suit, and not jurisdictional. Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (although
Title VII requires that plaintiffs timely exhaust administrative remedies,
“filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement
that, like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling[]”). For that reason, and because the parties did not
raise the issue of exhaustion with respect to the working conditions claim,
the court declines to address it sua sponte. See Mounts v. California,
2009 WL 1084214, at *4 (E.D.Cal. April 22, 2009) (“The court is unaware of
any authority that suggests that it has a sua sponte duty to address the
issue of failure to plead exhaustion of administrative remedies.”)

- 92 -

1

post-Dukes.

Decertification “is committed to the sound

2

discretion of the district court.”

3

AMR Corp., 2005 WL 6523266, at *3 (C.D.Cal. Feb. 24, 2005)

4

(citation omitted), aff’d in part and rev’d in part on

5

different grounds, 265 Fed. Appx. 472 (9th Cir. 2008).

6

district court reevaluating the basis for certification may

7

consider its previous substantive rulings in the context of the

8

history of the case, and may consider the nature and range of

9

proof necessary to establish the class-wide allegations.” Cruz

10

v. Dollar Tree Stores, Inc., 2011 WL 2682967, at *3 (N.D.Cal.

11

July 8, 2011) (internal quotation marks and citation omitted).

12

Likewise, “district courts retain the authority to amend or

13

decertify a class if, based on information not available or

14

circumstances not anticipated when the class was certified, the

15

court finds that either is warranted.” Dukes II, 603 F.3d at

16

580 n. 4, rev’d on other grounds, Dukes, 131 S.Ct. 2541).

17

Thus, “‘[e]ven after a certification order is entered, the

18

judge remains free to modify it in the

19

developments in the litigation[,]’” United Steel Workers, 593

20

F.3d at 809 (quoting Falcon, 457 U.S. at 160) (other citations

21

omitted), including “changes in the law that make it no longer

22

proper for a class to be maintained.”

23

214856, at *5 (internal quotation marks and citations omitted);

24

see also Brady v. Deloitte & Touche LLP, 2012 WL 1059694, at

25

*4-*8 (granting motion to decertify a class because the

26

plaintiffs did “not show[] that the requirements of Rule

27

23(b)(3) [we]re met[]” after intervening Ninth Circuit and

28

Dukes decisions).

- 93 -

West World Travel, Inc. v.

“[A]

light of subsequent

Estrella, 2012 WL

1

“In considering the appropriateness of decertification,

2

the standard of review is the same as a motion for class

3

certification: whether the Rule 23 requirements are met.”

4

Brady, 2012 WL 1059694, at *5 (N.D.Cal. March 27, 2012)

5

(citation omitted).

6

639 F.3d 942 (9th Cir. 2011), the Ninth Circuit found that on

7

defendant’s decertification motion “[t]he district court . . .

8

properly placed the burden on [the plaintiff] to demonstrate

9

that Rule 23's class-certification requirements had been met.”

In Marlo v. United Parcel Serv., Inc.,

10

Id. at 947-948.

11

procedure where “the proponent of a motion bears the initial

12

burden of showing that the motion should be granted, the Ninth

13

Circuit rule is that the party resisting the motion bears the

14

burden of showing that the motion should not be granted.”

15

Campbell v. PricewaterhouseCoopers, LLP, 287 F.R.D. 615, 619

16

(E.D.Cal. 2012) (citing Marlo., 639 F.3d at 947.46

17

that here, the plaintiffs retain the burden of “showing that

18

class certification is still warranted[.]” Id.

Thus, in contrast to the standard motion

That means

19

As previously discussed, this court, along with many

20

others, is of the view that the Supreme Court’s Dukes decision

21
22
23
24
25
26
27
28

46

Pre-Marlo, courts had held “that a party seeking decertification
of a class should bear the burden of demonstrating that the elements of
Slaven v. BP America,
Rule 23 have not been established.” See, e.g.,
Inc., 190 F.R.D. 649, 651 (C.D.Cal. 2000) (emphasis in original); Gonzales
v. Arrow Fin. Servs. LLC, 489 F.Supp.2d 1140, 1153 (S.D.Cal. 2007). Even
post-Marlo, some courts have continued to allocate the burden in that way.
See, e.g., Dalton v. Lee Publications, Inc., 2013 WL 2181219, at *3
(S.D.Cal. May 20, 2013) (citations omitted); Cole v. CRST, Inc., 2012 WL
4479237, at *3 (C.D.Cal. Sept. 27, 2012); Estrella v. Freedom Financial
Network, LLC, 2012 WL 214856, at *4 (N.D.Cal. Jan. 24, 2012). Given the
Ninth Circuit’s unequivocal holding in Marlo, however, this court agrees
that to the extent courts have found that on a motion to decertify, it is
the defendant’s burden to “demonstrat[e] that the elements of Rule 23 have
not been established[,] . . . these cases are no longer good law.” Negrete
v. Allianz Life Ins. Co. of N.Am., 287 F.R.D. 590, 598 n. 1 (S.D.Cal. 2012)
(internal quotation marks and citation omitted).

- 94 -

1

changed the legal landscape with respect to Rule 23(a)(2)’s

2

commonality requirement.

3

been anticipated when the working conditions class was

4

certified in 2005, is more than ample justification for

5

considering whether the working conditions class still can be

6

maintained in light of Dukes.

That change, which could not have

7

D.

8

Plaintiffs assert that “certification of the working

9

Commonality

conditions claim remains proper[]” because in Parra I this

10

court “identified a discriminatory practice[,]” which “meets

11

the standards for Rule 23(a) commonality.”

12

(Doc. 302) at 25:16-17.

13

plaintiffs have failed to “identify a specific policy or

14

practice[,]” much less one that “could have caused [the]

15

challenged working conditions. Def.’s Supp. Br. (Doc. 301) at

16

14:21-22; and Def.’s Resp. (Doc. 304) at 5:16 (emphasis in

17

original).

18

Pls.’ Supp. Br.

Disagreeing Bashas’ asserts that

The sole legal basis for plaintiffs’ argument that they

19

have identified a discriminatory practice is the following

20

excerpt

21
22
23
24
25
26
27

from Parra I:
[P]laintiffs claim that [Bashas’] acted in
a discriminatory manner by maintaining
disparate working conditions in their stores.
Unlike the numerous claims of discrimination
articulated by the plaintiffs in Monreal,
Plaintiffs here allege one main claim
of a discriminatory practice or policy.
Although the facts of each individual complaint
may differ according to where and in what
position the class member worked, viewed
together they form a general claim that
[Bashas’] holds a discriminatory policy or
practice in relation to working conditions
offered in its Food City stores.

28

Id. at 25:7-8 (quoting Parra I, 2005 WL 6182338, at *20
- 95 -

1

(emphasis added by plaintiffs); see also Pls.’ Reply (Doc. 303)

2

at 9:24 (same).

3

explain how the quoted rationale applies to the issue of Rule

4

23(a)(2) commonality, especially after Dukes.

5

Bashas’ response did not address plaintiffs’ reliance upon this

6

aspect of Parra I.

7

Significantly, plaintiffs do not attempt to

Likewise,

In any event, plaintiffs are disregarding the context of

8

the quoted rationale.

At that point in Parra I, the issue was

9

not Rule 23(a)(2) commonality,47 as it is now.

Instead, the

10

issue was the certifiability of the working conditions claim

11

pursuant to Rule 23(b)(2).48

12

sought, and more particularly, the availability of injunctive

13

or declaratory relief to the class as a whole.

14

(b)(2) class is the indivisible nature of the injunctive or

15

declaratory remedy warranted — the notion that the conduct is

16

such that it can be enjoined or declared unlawful only as to

17

all of the class members or as to none of them.”

18

S.Ct. at 2557

19

(emphasis added).

20

indivisibility of the relief sought is a separate issue from

21

whether plaintiffs’ working conditions claim satisfies Rule

That Rule focuses on the relief

“The key to the

Dukes, 131

(internal quotation marks and citation omitted)
It strikes the court, however, that

22
23
24
25
26
27

47

Tellingly, despite the explicit finding in Parra I that “on the
issue of working conditions, the proposed class shares sufficient
commonality to satisfy the minimal requirements of Rule 23(a)(2)[,]”
plaintiffs did not even mention, much less rely upon, that finding to
establish commonality after Dukes. See Parra I, 2005 WL 6182338, at *16.
The court is compelled to agree with plaintiffs’ concession, albeit
implicit, that the Parra I commonality finding could not withstand scrutiny
in light of Dukes.
48

28

Seeming to recognize that distinction, plaintiffs’ reply argues
that “this court properly certified the working conditions claim under Rule
23(b)(2)[.]” Pls.’ Reply (Doc. 303) at 6:18 (emphasis omitted) (italicized
emphasis added). But again, that is not the issue now.

- 96 -

1

23(a)(2)’s commonality requirement, particularly in the wake of

2

Dukes.

3

To be sure, “it is sufficient to meet the requirements of

4

Rule 23(b)(2) that class members complain of a pattern or

5

practice that is generally applicable to the class as a whole.”

6

Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)

7

(internal quotation marks and citations omitted).

8

token, however, plaintiffs did not offer any legal support, and

9

research did not reveal any, to support the view that just

10

because Rule 23(b)(2) has been satisfied, so, too, has Rule

11

23(a)(2)’s commonality requirement.

12

not convinced that its Rule 23(b)(2) rationale in Parra I,

13

standing alone, supports a finding that plaintiffs have

14

satisfied Dukes’ commonality standards.

15

plaintiffs have not met their burden of “affirmatively

16

demonstrating” their compliance with Rule 23(a)(2), Dukes, 131

17

S.Ct. at 2551, and, concomitantly, that the working conditions

18

class still should be certified.

19

By the same

Therefore, the court is

Accordingly,

There are two other deficits in plaintiffs’ attempt to

20

show commonality which are particularly noteworthy after

21

Dukes, as Bashas’ points out.

22

failure to show that their working conditions claim

23

“depend[s] upon a common contention . . . that is capable of

24

classwide resolution[.]” See Dukes, 131 S.Ct. at 2551.

25

Unlike plaintiffs’ equal pay claim where, as discussed

26

herein,

27

claims for relief will produce a common answer to the crucial

28

question why was I disfavored[,]” plaintiffs have not made a

The first is plaintiffs’

“examination of all the putative class members’

similar showing as to their working conditions claim.
- 97 -

See

1

id.

2

for class certification, plaintiffs did list a number of

3

alleged common issues of law and fact.

4

159) at 19:22-21:12.

5

plaintiffs have not explained how continued class

6

certification of the working conditions claim has “the

7

capacity . . . to generate common answers apt to drive the

8

resolution of th[is] litigation.”

9

2551 (internal quotation marks and citation omitted)

10
11

at 2552 (emphasis in original).

In originally moving

See Pls.’ MCC (Doc.

But, in contrast to their pay claim,

See Dukes, 131 S.Ct. at

(emphasis in original).
That omission is intertwined with the second weakness in

12

plaintiffs’ commonality proof – the insufficiency of their

13

anecdotal evidence.

14

proof that Wal-Mart operated under

15

discrimination” was entirely absent; and hence, plaintiffs

16

did not establish commonality.

17

(internal quotation marks omitted).

18

attempted to “identif[y] a common mode of exercising

19

discretion that pervade[d] the entire company” by relying

20

upon, inter alia, anecdotal evidence.

21

2555-56.

22

reporting experiences of discrimination

23

12,500 class members – relating to only 235 out of Wal-Mart’s

24

3,4000 stores”) were relatively small given the class size

25

(1.5 million).

26

Wal-Mart discriminated nation-wide, “more than half of the”

27

anecdotes

28

of all States ha[d] only one or two anecdotes; and 14 States

The Dukes Court held that “significant
a general policy of

Dukes, 131 S.Ct. at 2553
In Dukes, plaintiffs

Dukes, 131 S.Ct. at

There, the anecdotes amassed (“120 affidavits
– about 1 for every

Further, although the plaintiffs alleged that

were “concentrated in only six States. . . ; half

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1

ha[d] no anecdotes about Wal-Mart’s operations at all.”

2

at 2556 (citation omitted).

3

“[e]ven if every single one of th[o]se accounts [wa]s true,

4

that would not demonstrate that the entire company operate[s]

5

under a general policy of discrimination, . . . which is what

6

respondents must show to certify a companywide class.”

7

(internal quotation marks, citation and footnote omitted).

8
9

Id.

The Dukes Court thus held that

Id.

The anecdotal evidence in the present case is similarly
weak.

In 2004, Food City had 58 stores. Def.’s exh. 1

10

(Proulx Aff.) at 3, ¶ 8.

11

only 11 declarations from putative class members, and two

12

other declarations.

13

former Food City employees, describe purportedly substandard

14

working conditions in at most nine of the 58, or 15.5%, of

15

Food City stores.

16

pertain to Food City store 59 which is “now closed.”

17

Supp. Br. (Doc. 301) at 6:25 (emphasis omitted).

18

of those declarations is that Food City stores have issues

19

with rodents, roaches, and poorly maintained equipment and

20

work areas.

21

veracity of all 13 of those accounts, “that would not

22

demonstrate that [Bashas’] operate[s] under a general policy

23

of discrimination” with respect to working conditions at its

24

Food City stores.

25

quotation marks and citation omitted).

26

Yet, plaintiffs are relying upon

Those declarations, from current and

Moreover, four of those declarations
Def.’s

The thrust

As in Dukes, however, even assuming the

See Dukes, 131 S.Ct. at 2556 (internal

Besides the relatively few proffered declarations,

27

evidence is lacking “that the entire class was subject

28

the same allegedly discriminatory practice[.]” Ellis I, 657

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to

1

F.3d at 983 (emphasis added).

2

part,

3

countervailing declarations from Food City employees, many of

4

them Hispanic, from at least 33 different stores.

5

generally Def.’s Resp. MCC (Doc. 190), exh. 50-135 thereto.

6

This broader spectrum of proof readily shows that not all

7

Food City stores are as plaintiffs depict through their few

8

selective declarations.

9

Such evidence is lacking, in

because the record includes more than 80

See

This is not surprising given the acquisition history of

10

the Food City stores.

11

Michael Proulx, Bashas’ Executive Vice President and Chief

12

Operating Officer, Def.’s Resp. MCC (Doc. 190), exh. 3

13

thereto at 4:17-18, in the decade between 1994 and 2004,

14

Bashas’ rapidly “expanded[,] . . . , most notably in the Food

15

City format[.]” Id., exh. 1 thereto (Proulx Aff.) at 2, ¶ 8.

16

For example, in 1996, Bashas’ acquired 16 Mega Foods stores,

17

twelve of which eventually became Food City stores.

18

4, ¶ 11.

19

Id. at 4, ¶ 12.

20

condition.”

21

significant facility issues.”

22

situation when “[a]round 2001, Bashas’ purchased some ABCO

23

stores, some of which were converted to Bashas’ stores and

24

some of which were converted to Food City stores.”

25

¶ 14.

26

conditions, ranging from being in good shape to needing much

27

improvement.”

28

As delineated in the affidavit of

Id. at

“Those stores were in vastly varying conditions.”
“Some . . . were relatively new and in good

Id. “Others were older stores that had
Id. That was also the

Id. at 4,

“Again, these stores were in a variety of different

Id.

This acquisition history is significant because, inter

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1

alia, it further demonstrates the lack of a common answer to

2

the question of why was I disfavored as to working

3

conditions.

4

especially when read in the context of the acquisition

5

history of Food City stores, “is too weak to raise any

6

inference that” the working conditions at all Food City

7

stores were substandard because those stores employ a higher

8

percentage of Hispanics than do A.J.’s and Bashas’.

9

Dukes, 131 S.Ct. at 2556.

Plaintiffs’ meager anecdotal evidence,

See

In short, plaintiffs have not,

10

as they must post-Dukes, shown that “there was ‘significant

11

proof that [Bashas] operated under a general policy of

12

discrimination[]’” with respect to working conditions that

13

could “affect the class as a whole.”

14

983 (quoting Dukes, 131 S.Ct. at 2553.

15

because it cannot survive Dukes, the court decertifies the

16

working conditions class previously certified in Parra I.

17

In sum, for all of the reasons set forth herein, the

Ellis I, 657 F.3d at
Accordingly,

18

court grants plaintiffs’ motion for class certification as

19

to the pay claim for monetary damages pursuant to

20

Fed.R.Civ.P. 23(b)(3), on behalf of current and former

21

employees.

22

Martinez shall serve as the class representatives for that

23

class.

24

previously certified in Parra I, however.

25

III.

26

Named plaintiffs Gonzalo Estrada and Aurelia

The court decertifies the working conditions class

Rule 23(f)
Presumably, Bashas’ is continuing to

“request[]” that

27

upon class certification, this court “recommend the

28

acceptance of a Rule 23(f) appeal.”

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See Def.’s Resp. MCC

1

(Doc. 190) at 82:14 (emphasis added).

That Rule states, in

2

relevant part, that “[a] court of appeals may permit an

3

appeal from an order granting or denying class-action

4

certification under this rule if a petition for permission

5

to appeal is filed with the circuit clerk within 14 days

6

after the order is entered.”

7

added).

8

court disagrees with Bashas’ reading thereof.

9

to permit an appeal from an order denying or granting of

Fed.R.Civ.P. 23(f) (emphasis

Given the unequivocal language of that Rule, this
The authority

10

class certification lies with the court of appeals

– not

11

with the district court.

12

23(f) does not contemplate a recommendation of such an

13

appeal, as Bashas’ urges.

14

request that this court recommend to the Ninth Circuit that

15

it accept an immediate appeal of the class certification

16

decision herein.

It is equally clear that Rule

The court thus denies Bashas’

17

Relatedly, the court likewise presumes that Bashas’

18

continues to seek a stay “pending Ninth Circuit action.”

19

Def.’s Resp. MCC (Doc. 190) at 82:15.

20

retain jurisdiction to stay its own order pending appeal.

21

See Fed.R.App.P. 8(a).

22

moved for such relief, and has not addressed the four-factor

23

balancing test which this Circuit applies in evaluating

24

whether to issue a stay.

25

F.3d 962, 964 (9th Cir. 2011).

26

motion can be read as seeking a stay pending appeal, the

27

court denies such relief.

28

. . .

However,

This court does

Bashas’ has not explicitly

See Leiva-Perez v. Holder, 640
Thus, to the extent Bashas’

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Conclusion

1
2

Accordingly, the court hereby ORDERS that Plaintiffs’

3

Motion for Class Certification (Doc. 159) is GRANTED to the

4

extent they are seeking certification of a class with

5

respect to pay pursuant to Fed.R.Civ.P. 23(b)(3).

6

regard, the court certifies a class as follows:

7
8
9
10
11
12

In that

All Hispanic workers currently and formerly
employed by defendant Bashas’ Inc. in an hourly
position at any Food city retail store since
April 4, 1998, who have been subject to the
challenged pay policies and practices.
IT IS FURTHER ORDERED that the working conditions claim
is DECERTIFIED; and
IT IS FINALLY ORDERED that in conformity with

13

Fed.R.Civ. P. 23(c)(2)(B), within thirty (30) days of the

14

date of entry of this order, the parties shall submit

15

jointly an agreed upon form of notice, a joint proposal for

16

dissemination of the notice, and the time-line for opting

17

out of the action.

18

notice, which shall include mailing by first-class mail.

19

Plaintiffs must bear the costs of the

DATED this 31th day of May, 2013.

20
21
22
23
24
25
26
27

Copies to all counsel of record

28

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