Adamov v. PricewaterhouseCoopers LLP

Filing 93

ORDER signed by District Judge Troy L. Nunley on 12/5/2018 GRANTING 58 Motion for Summary Judgment. The 87 Request for Reconsideration is DENIED as moot. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YURY ADAMOV, individually, and on
behalf of himself and all other similarly
situated current and former employees of
PricewaterhouseCoopers LLP,
Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

v.

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No. 2:13-cv-01222-TLN-AC

PRICEWATERHOUSECOOPERS LLP, a
Limited Liability Partnership,

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Defendant.

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This matter is before the Court pursuant to Defendant PricewaterhouseCoopers LLP’s

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(“PwC”) Motion for Summary Judgment. (ECF No. 58.) Plaintiff Yury Adamov (“Plaintiff”),

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individually, and on behalf of himself and all other similarly situated current and former

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employees of PwC, filed an opposition, (ECF No. 60), and PwC filed a reply, (ECF No. 61). For

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the reasons set forth below, the Court GRANTS PwC’s Motion for Summary Judgment. (ECF

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No. 58.) In light of the Court’s ruling, PwC’s Request for Reconsideration of the Magistrate

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Judge’s Ruling is DENIED as moot. (ECF No. 87.)

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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On June 19, 2013, Plaintiff filed a putative class action against PwC alleging violations of

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California labor laws, including failure to pay overtime wages, failure to provide itemized

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employee wage statements, failure to provide meal periods, and failure to provide rest periods.

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(ECF No. 2.) On December 6, 2013, Plaintiff filed a First Amended Complaint asserting the

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same causes of action. (ECF No. 35.) On February 21, 2017, Plaintiff filed a Second Amended

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Complaint (“SAC”) asserting only the following causes of action: (1) Violations of California

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Labor Code §§ 510 & 1194 for failure to pay overtime wages and (2) Violations of California

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Business and Professions Code § 17200. (ECF No. 54.) Essentially, Plaintiff’s SAC alleges that

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PwC misclassified him as exempt from overtime requirements. (ECF No. 54 ¶ 11.) In addition to

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eliminating three of his claims, Plaintiff also limited the class to include only the following:

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All persons employed by PricewaterhouseCoopers LLP in California
between June 19, 2009 and the present who: (1) assisted certified
public accountants in the practice of public accountancy, as provided
for in California Business and Professions Code §§ 5051 and 5053;
(2) worked as first-year Associates in the “Attest” Division of the
“Assurance” Line of Service (“attest associates”); (3) were not
licensed by the State of California as certified public accountants
during some or all of this time period; and (4) were classified by
[PwC] as “exempt” employees.

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(ECF No. 54 ¶ 18.) In light of this limited class definition, PwC now moves for summary

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judgment, arguing that Plaintiff worked no overtime hours as a first-year Associate subsequent to

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the June 19, 2009 start date of the putative class period, and therefore, has no standing to bring a

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class action lawsuit. (ECF No. 58-1.)

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The parties agree on the following facts. Plaintiff worked as an Attest Associate in PwC’s

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Los Angeles, California office from September 15, 2008 to December 1, 2010. (ECF No. 60-3

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¶¶ 1–2.) On August 3, 2009, Plaintiff went on an eight-week sabbatical leave, which consisted of

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(i) a ten-day vacation from August 3, 2009 through August 13, 2009, during which he was paid

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from his accrued and unused vacation time, and (ii) a forty-two-day sabbatical leave of absence

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from August 14, 2009 through September 25, 2009, during which he was paid at a rate of twenty

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percent of his regular monthly base pay. (ECF No. 60-3 ¶¶ 4–7.) Plaintiff did not bill any time at

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PwC during this eight-week sabbatical. (ECF No. 60-3 ¶ 8.) On September 28, 2009, Plaintiff
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returned to active status at PwC. (ECF No. 60-3 ¶ 9.) From June 19, 2009, the start of the class

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period, until October 19, 2009, Plaintiff worked no overtime hours. (ECF No. 60-4 ¶ 12; ECF No.

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61 at 4.)
Despite agreeing on this timeline of events, the parties dispute when Plaintiff “worked as a

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first-year Associate.” PwC maintains that Plaintiff worked as a first-year Attest Associate from

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September 15, 2008 to August 31, 2009. (ECF No. 60-3 ¶ 3.) According to PwC’s Director of

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Human Resources Operations, PwC classified Plaintiff as a second-year Attest Associate

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beginning on September 1, 2009, on which date all campus hires who began their employment in

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PwC’s Attest group in Fall 2008 became second-year Associates. (ECF No. 58-4 ¶ 5.) PwC

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contends that despite the fact that Plaintiff was still on his sabbatical on September 1, 2009, PwC

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considered Plaintiff’s sabbatical a period of employment for purposes of determining Plaintiff’s

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service credit, and thus, his sabbatical did not affect his status as a second-year Associate. (ECF

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No. 60-3 ¶ 12.) Plaintiff, conversely, asserts that there is no job position of first-year Attest

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Associate or second-year Attest Associate. (ECF No. 60-3 ¶¶ 3, 11–12). Plaintiff maintains that

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he completed his first year of work as an Attest Associate at PwC on November 9, 2009, when he

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completed his first fifty-two weeks of work. (ECF No. 60-4 ¶¶ 9, 12.) In calculating his first

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year of work as an Attest Associate, Plaintiff excluded the time he was on sabbatical,1 arguing

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that he was prohibited from engaging in work at this time. (See ECF No. 60-4 ¶ 6; ECF No. 60 at

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10.)

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II.

STANDARD OF LAW

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Summary judgment is appropriate when the moving party demonstrates no genuine issue

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of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.

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R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary

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judgment practice, the moving party always bears the initial responsibility of informing the

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district court of the basis of its motion, and identifying those portions of “the pleadings,

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depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”

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which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

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Plaintiff includes his ten-day vacation as part of this excluded sabbatical time.

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Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof

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at trial on a dispositive issue, a summary judgment motion may properly be made in reliance

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solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at

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324 (internal quotation marks omitted). Indeed, summary judgment should be entered against a

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party who does not make a showing sufficient to establish the existence of an element essential to

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that party’s case, and on which that party will bear the burden of proof at trial. Id. at 322.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities Serv.

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Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual dispute,

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the opposing party may not rely upon the denials of its pleadings, but is required to tender

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evidence of specific facts in the form of affidavits or other admissible discovery material, in

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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must

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demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

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suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that

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the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party, id. at 251–52.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to

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‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita, 475 U.S. at 587 (quoting Advisory Committee Note to 1963 Amendment of

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Fed. R. Civ. P. 56(e)).

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In resolving the summary judgment motion, the court examines the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.

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R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence

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of the opposing party is to be believed, and all reasonable inferences that may be drawn from the
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facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.

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at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. Richards v.

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Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.

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1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party

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“must do more than simply show that there is some metaphysical doubt as to the material facts.”

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Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of

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fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.

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III.

ANALYSIS

PwC moves for summary judgment, arguing that Plaintiff’s claims should be dismissed

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because he lacks Article III standing. (ECF No. 58-1 at 9–10.) “Constitutional standing requires

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a plaintiff to demonstrate: (1) an injury in fact; (2) traceability, i.e., a causal connection between

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the injury and the actions complained of; and (3) redressability.” Easter v. Am. W. Fin., 381 F.3d

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948, 961 (9th Cir. 2004) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “The

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burden of establishing these three elements falls upon the party asserting federal jurisdiction.”

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Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002). “[T]hey are an

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‘indispensable part of the plaintiff’s case,’ and accordingly must be supported at each stage of

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litigation in the same manner as any other essential element of the case.” Id. (quoting Lujan, 504

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U.S. at 561). Thus, at the summary judgment stage, the plaintiffs need only establish “that there

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is a genuine question of material fact as to the standing elements.” Id.

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“In a class action, named plaintiffs representing a class ‘must allege and show that they

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personally have been injured, not that injury has been suffered by other, unidentified members of

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the class to which they belong and which they purport to represent.’” In re Adobe Sys. Privacy

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Litig., 66 F. Supp. 3d 1197, 1211 (N.D. Cal. 2014) (quoting Warth v. Seldin, 422 U.S. 490, 502

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(1975)). “[I]f none of the named plaintiffs purporting to represent a class establishes the requisite

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of a case or controversy with the defendants, none may seek relief on behalf of himself or any

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other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974).

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PwC argues that Plaintiff lacks an injury because the undisputed facts establish that
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Plaintiff worked no overtime hours as a first-year Associate during the pleaded class period.

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(ECF No. 58-1 at 9–10.) PwC maintains that Plaintiff worked as a first-year Attest Associate

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from September 15, 2008 to August 31, 2009, and became a second-year Attest Associate on

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September 1, 2009 with the rest of the Fall 2008 class. (ECF No. 58-1 at 6.) Plaintiff responds

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that there is no “first-year Associate” job position at PwC. (ECF No. 60 at 13.) Plaintiff argues

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that “worked as first-year Associates” means fifty-two weeks spent actually working, and

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therefore, Plaintiff’s sabbatical should not be included in determining the time he worked as a

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first-year Associate. (ECF No. 60 at 10.) In other words, Plaintiff argues that the phrase “first-

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year Associates” does not refer to a job title, but rather specifies a time period of fifty-two weeks

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working as an Associate. (ECF No. 60 at 5.) Thus, Plaintiff maintains that he worked as a first-

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year Attest Associate from September 15, 2008 to November 9, 2009. (ECF No. 60 at 8.)

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Plaintiff’s contrived definition of his pleaded class is inconsistent with its plain meaning.

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The phrase “first-year Associates” includes the hyphenated phrasal adjective “first-year” to

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modify the word “Associates.” See Bryan A. Garner, The Redbook: A Manual on Legal Style

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§ 1.60 (3d ed. 2013) (“A phrase functioning as an adjective in front of a noun or pronoun should

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ordinarily be hyphenated. . . . Ex.: A third-year associate is handling the case.”). Thus, “first-

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year” describes a specific group of Associates, not a period of time Associates spend working.

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Indeed, Plaintiff’s own brief demonstrates the futility of his argument. There, Plaintiff is forced

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to engage in linguistic gymnastics in order to fashion his argument. Rather than use the term

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“first-year Associate,” Plaintiff argues that he worked overtime hours during his first year of work

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as an Associate. (ECF No. 60 at 9.) However, “worked as a first-year Associate” does not carry

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the same meaning as “first year of work as an Associate.” The former describes a subgroup of

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Associates, while the latter describes a time period of one year working as an Associate.

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Plaintiff’s assertion that there is no formal first-year Associate job position does not

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change this analysis. It is clear from the evidence the most recent group of employees hired

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directly from college are informally considered first-year Associates, even if there is no official

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first-year Associate job position. (ECF No. 58-4 ¶ 4.) Thus, Plaintiff, who was hired directly

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from Loyola Marymount University, began working as a first-year Attest Associate on September
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15, 2008. (ECF No. 58-4 ¶ 4.) PwC classified Plaintiff and all other campus hires who began

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their employment in PwC’s Attest group in Fall 2008 as second-year Associates on September 1,

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2009, regardless of their specific start date. (ECF No. 58-4 ¶ 5.) Plaintiff’s eight-week sabbatical

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leave did not affect this classification as his sabbatical was “considered as a period of

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employment for purposes of determining service credit with PwC.” (ECF No. 58-4 at 16; see

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ECF No. 58-4 ¶ 7.) Therefore, Plaintiff became a second-year Associate on September 1, 2009.

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According to PwC, progression from first-year Associate to second-year Associate is

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generally accompanied by a pay raise, which occurs on the date PwC classifies its employees as

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second-year Associates. (ECF No. 58-4 ¶ 6.) For example, first-year Attest Associates who

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became second-year Attest Associates on September 1, 2008 and were performing as expected

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received pay raises effective September 1, 2008. (ECF No. 58-4 ¶ 6.) Plaintiff’s employment

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agreement explicitly states that “[m]erit increases, if any, based on performance generally are

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made effective September 1” and that he was “eligible for an increase effective September 1,

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2009.” (ECF No. 58-4 at 7.) Thus, PwC maintains that Plaintiff would have received such a pay

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raise on September 1, 2009 when he became a second-year Associate. (ECF No. 58-4 ¶ 6.)

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However, because of the dramatic economic downturn that accompanied the Great Recession,

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PwC froze pay for all employees in 2009. (ECF No. 58-4 ¶ 6.)

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Plaintiff may not plead ignorance to PwC’s practice of grouping Associates by class year.

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In addition to Plaintiff’s employment agreement discussing pay raises occurring on September 1,

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2009, one of Plaintiff’s performance reviews from 2009 repeatedly refers to Plaintiff as a “first

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year associate.” (ECF No. 61-4 at 8–9 (“even though Yury was a first year associate;” “Even as a

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first year;” “I believe as a first year associate Yury is;” “although he is a first year associate”).)

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Plaintiff read and responded to this review, (see ECF No. 61-4 at 9), and therefore knew that PwC

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referred to its employees by class year. Further, Plaintiff’s counsel’s briefings in the related

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Campbell2 case explicitly acknowledged PwC’s grouping of Associates by class year. (ECF No.

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61-5 at 17 (“For purposes of this determination a second-year ‘in charge’ attest associate assisting

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the engagement leader in putting together an audit plan is no different than a first-year attest

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Case No. 2:06-cv-02376-TLN-AC

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associate counting inventory.”).) Ultimately, Plaintiff chose to use the term “first-year

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Associate,” and he must now live with the consequences of his decision to limit the class in such

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a way. Plaintiff may not unilaterally redefine his class definition in an attempt to circumvent the

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fact that he pleaded a class definition he initially thought advantageous to his claims, but in the

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end left him with no injury.

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Of course, even under Plaintiff’s definition of “first-year Associate,” Plaintiff did not

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work any overtime during his first fifty-two weeks of work. Plaintiff began his first day of work

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on September 15, 2008, and thus completed his first fifty-two weeks of work on September 13,

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2009 at the latest. The parties agree Plaintiff has no actionable overtime hours through

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September 13, 2009. Thus, for Plaintiff to have a colorable claim for overtime, he further strains

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his class definition by arguing that the fifty-two weeks must exclude any time “where no work is

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performed.” (ECF No. 60 at 4.) This exclusion is provided nowhere in Plaintiff’s class

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definition. Moreover, Plaintiff does not explain why sabbaticals are excluded from this

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measurement, while presumably other absences “where no work is performed” such as sick days,

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holidays, vacations, and maternity or paternity leave are not. Thus, even under Plaintiff’s fifty-

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two-week standard, Plaintiff has failed to demonstrate he suffered any injury. Therefore, Plaintiff

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has not shown he worked any overtime hours during the relevant class period. Accordingly,

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Plaintiff has suffered no injury in fact and lacks standing to bring a claim either individually or on

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behalf of a class.

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Plaintiff asserts that “if the Court were to accept PwC’s version of the class definition,

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Plaintiff requests the Court’s permission to clarify the class definition to rule out the version of it

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advanced by PwC in support of its motion.” (ECF No. 60 at 15.) However, Plaintiff has not even

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attempted to demonstrate that he has good cause to make an amendment under Federal Rule of

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Civil Procedure (“Rule”) 16(b), nor has he attempted to demonstrate that amendment is proper

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under Rule 15(a). See Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992) (A

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plaintiff seeking to amend his complaint after a deadline specified in the scheduling order must

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first show “good cause” under Rule 16(b) and then show that the proposed amendment is proper

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under Rule 15(a).). Accordingly, the Court denies Plaintiff’s request to amend his class
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definition.

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IV.

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For the foregoing reasons, the Court hereby GRANTS PwC’s Motion for Summary

CONCLUSION

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Judgment. (ECF No. 58.) In light of the Court’s ruling, PwC’s Request for Reconsideration of

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the Magistrate Judge’s Ruling is DENIED as moot. (ECF No. 87.)

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IT IS SO ORDERED.
Dated: December 5, 2018

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Troy L. Nunley
United States District Judge

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