Snipes v. Dollar Tree Distribution, Inc.

Filing 63

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr on 11/27/2017 ORDERING that Plaintiff Terry T. Snipes Sr. is HEREBY APPOINTED as class representative; Sutton Hague Law Corporation is HEREBY APPOINTED as class counsel. (Hunt, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRY T. SNIPES, SR., an individual,

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Plaintiff,

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No. 2:15-cv-00878-MCE-DB

v.

MEMORANDUM AND ORDER

DOLLAR TREE DISTRIBUTION, INC.,
a Virginia corporation, and DOES 1
through 50, inclusive,

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Defendants.

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Through the present class action proceeding, Plaintiff Terry T. Snipes, Sr.

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(“Plaintiff”) challenges various wage and hour practices utilized by his employer,

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Defendant Dollar Tree Distribution, Inc., (“Dollar Tree” or “Defendant”) both on his own

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behalf and on behalf of others similarly situated. According to Plaintiff, Dollar’s Tree

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uniform timekeeping practices wrongfully exclude compensable time and operate to

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deprive employees of their legally guaranteed uninterrupted rest and/or meal period.

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Plaintiff brings his first eight causes of action on a class-wide basis pursuant to Federal

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Rule of Civil Procedure 23. In the ninth through sixteenth causes of action, Plaintiff also

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seeks civil penalties against Dollar Tree pursuant to the provisions of California’s Private

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Attorney General Act, California Labor Code § 2699 et seq. (“PAGA”)

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Plaintiff now moves for class certification. As set forth below, his motion in that
regard is GRANTED.1

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BACKGROUND

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Dollar Tree Inc. is a nationwide discount retailer with thousands of stores located

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in all 48 contiguous states. Hague Decl., ex. 6. Defendant is a wholly-owned subsidiary

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of the larger Dollar Tree Inc. organization. Dollar Tree has distribution centers located

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throughout the country, including two California facilities located in Stockton and

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San Bernadino, California. Dollar Tree employs several categories of non-exempt

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employees at those locations, including general warehouse associates, maintenance

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associates, and certain human resources personnel. Id. at Ex. 3 (Schloss Depo.), 11:24-

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12:3. Plaintiff, who brings this action on behalf of other similarly situated Dollar Tree

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employees, is a warehouse associate and order selector at Dollar Tree’s Stockton

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Facility. Id. at Ex. 1 (Snipes Depo.), 17:17-18:5, 29:12-14.

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Plaintiff alleges that Dollar Tree’s California handbook fails to provide non-exempt

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employees with legally compliant meal and rest periods in several ways. First, according

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to Plaintiff, Dollar Tree requires its employees to clock in and out in a manner that

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always benefits Dollar Tree. More specifically, Plaintiff claims that non-exempt

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employees, who are paid in 15-minute increments, cannot clock in more than seven

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minutes in advance of their scheduled shift, or more than seven minutes after their shifts

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end. This systemic practice results in underpayment to employees since they never

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monetarily benefit from Dollar Tree’s automatic practice of rounding to the nearest

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15-minute intervals. Second, by forcing multiple employees to clock in and out via a

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limited number of terminals, Plaintiff claims that statutorily-mandated rest and meal

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breaks are compromised as a result of long lines. Finally, Plaintiff claims that Dollar

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Having determined that oral argument would not be of material assistance, the Court ordered this
motion submitted on the briefs in accordance with E.D. Local Rule 230(g).

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Tree’s employee handbook does not specify the appropriate rest and/or meal periods.
In addition, Plaintiff claims that Dollar Tree’s wage statements are inaccurate

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because they fail to include non-discretionary bonuses when calculating an employee’s

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regular rate of pay. According to Plaintiff, because so called “MVP” productivity and

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year-end bonuses are consistently awarded year after year, Dollar Tree is remiss in not

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calculating such bonuses into its employees’ regular pay.

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In now moving for class certification, Plaintiff proposes that several classes and

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subclasses be recognized stemming from these common allegations which he claims

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apply to some 783 current and former non-exempt employees of Dollar Tree.

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STANDARD

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A court may certify a class if a plaintiff demonstrates that all of the prerequisites of

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Federal Rule of Civil Procedure 23(a) have been met, and that at least one of the

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requirements of Rule 23(b) have been met. See Fed. R. Civ. P. 23; see also

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Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Before certifying a

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class, the trial court must conduct a “rigorous analysis” to determine whether the party

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seeking certification has met the prerequisites of Rule 23. Id. at 1233. While the trial

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court has broad discretion to certify a class, its discretion must be exercised within the

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framework of Rule 23. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186

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(9th Cir. 2001).

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Rule 23(a) provides four prerequisites that must be satisfied for class certification:

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(1) the class must be so numerous that joinder of all members is impracticable;

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(2) questions of law or fact exist that are common to the class; (3) the claims or defenses

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of the representative parties are typical of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately protect the interests of the class.

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See Fed. R. Civ. P. 23(a). Rule 23(b) requires a plaintiff to establish one of the

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following: (1) that there is a risk of substantial prejudice from separate actions; (2) that
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declaratory or injunctive relief benefitting the class as a whole would be appropriate; or

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(3) that common questions of law or fact predominate and the class action is superior to

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other available methods of adjudication. See Fed. R. Civ. P. 23(b).

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ANALYSIS

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A.

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The Proposed Classes Satisfy All Four Requirements of Rule 23(a)
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Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all members

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is impracticable. See Fed. R. Civ. P. 23(a)(1). Moreover, “the class must be adequately

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defined and clearly ascertainable . . . [b]ut the class need not be so ascertainable that

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every potential member be identified at the commencement of the action. As long as the

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general outlines of the membership of the class are determinable at the outset of the

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litigation, a class will be deemed to exist.” Whitaker v. Bennett Law, PLLC,

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No. 13-cv-3145-L(NLS), 2014 WL 5454398 at *4 (S.D. Cal. Oct. 27, 2014).

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“Courts have routinely found the numerosity requirement satisfied when the class

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comprises 40 or more class members.” Collins v. Cargill Meat Solutions. Corp.,

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274 F.R.D. 294, 300 (E.D. Cal. 2011). Nonetheless “[t]he numerosity requirement

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contains no specific numerical threshold.” Andrews Farms v. Calcot, Ltd., 258 F.R.D.

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640, 651 (E.D. Cal. 2009), order clarified on reconsideration, 268 F.R.D. 380 (E.D. Cal.

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2010). Rule 23(a)’s numerosity requirement “does not mean that joinder of all members

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is impossible, but rather means only that the court must find that the difficulty or

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inconvenience of joining all members of the class makes class litigation desirable.” In re

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Itel Sec. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981) (citing Harris v. Palm Springs Alpine

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Estates, Inc., 329 F.3d 909, 913-14 (9th Cir. 1964)). Courts have been inclined to certify

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classes of even relatively modest size. See, e.g.,Jordan v. Los Angeles County,

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669 F.2d 1311, 1319 (9th Cir. 1982) (willing to find numerosity for classes with thirty-

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nine, sixty-four, and seventy-one people, respectively), vacated on other grounds,

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459 U.S. 810 (1982).

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Here, the numbers involved easily satisfy the numerosity requirement. As

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confirmed by Plaintiff’s discovery, Dollar Tree employed “a total of 783 non-exempt

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employees” throughout its California facilities during the course of the designated period

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of April 1, 2011 to the present. Hague Decl. at Ex. 7 (“Def’s Resp. to Special

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Interratories, Set One”), No. 3. Since numerosity is ordinarily presumed to the extent the

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proposed class size exceeds 40 individuals, Plaintiff has thus satisfied that requirement.

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See, e.g., Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.

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1995)

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2.

Commonality

Under Rule 23(a)(2), Plaintiff must also demonstrate that there are “questions of

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law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This requirement is

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construed permissively and can be satisfied upon a finding of “shared legal issues with

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divergent factual predicates.” Hanlon v.Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

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1998). As the Supreme Court has clarified: “What matters to class certification. . . is not

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the raising of common ‘questions’ - - - even in droves - - - but, rather, the capacity of a

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classwide proceeding to generate common answers apt to drive the resolution of the

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litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).

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Irrespective of whether they ultimately prove to be persuasive, the allegations

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lodged here by Plaintiff on behalf of other employees appear unquestionably to involve

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questions of law or fact common to the purported classes. Therefore this prerequisite for

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class action treatment is also satisfied.

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3.

Typicality

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Rule 23(a)(3) requires that “the claims and defenses of the representative parties

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are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The test for

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whether typicality is present is “whether other members have the same or similar injury,
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whether the action is based on conduct which is not unique to the named plaintiffs, and

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whether other class members have been injured by the same course of conduct.”

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Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). The inquiry is again

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“permissive” and requires only that the representative’s claims are “reasonably

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coextensive with those of the absent class members; they need not be substantially

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identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). In other

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words, the action must be based on conduct not unique to Plaintiff but conduct which

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has injured other class members. Ellis v. Costco Wholesale Corp., 657 3d 970, 984

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(9th Cir. 2011)

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Here, given the fact that Plaintiff claims are predicated on allegedly uniform

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policies and practices that applied equally to all proposed class members, it would

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appear that Plaintiff’s claims and injuries are typical of those suffered by the purported

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classes. Resolution of that question therefore also weighs in favor of class treatment.

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Adequacy

“The final hurdle interposed by Rule 23(a) is that ‘the representative parties will

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fairly and adequately protect the interests of the class.’” Hanlon, 150 F.3d at 1020

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(quoting Fed. R. Civ. P. 23(a)(4).) “To satisfy constitutional due process concerns,

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absent class members must be afforded adequate representation before entry of a

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judgment which binds them.” Id. (citing Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)).

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“Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and

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their counsel have any conflicts of interest with other class members and (2) will the

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named plaintiffs and their counsel prosecute the action vigorously on behalf of the

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class?” Hanlon, 150 F.3d at 1020.

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Plaintiff here is a non-exempt employee who claims he was subjected by Dollar

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Tree to unlawful practices under circumstances both identical and co-extensive to those

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inuring to the class as a whole. He seeks the same categories and scale of damages

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sought on a classwide basis and states that he believes Dollar Tree is taking advantage

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of him and other under paid workers through a “lack of transparency in its payment
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systems and meal and rest policies.” Snipes Decl., ¶ 21. Indeed, Plaintiff claims to seek

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vindication not only for himself, but for his fellow employees and states he retained

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counsel in order “to hold Dollar Tree accountable for their illegal activities and to try to

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prevent future employees of Dollar Tree from experiencing the same mistreatment that

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[he] experienced.” Id. at ¶ 22. Significantly, too, Plaintiff states he is ready, willing and

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able to accept his role as class representative and will dutifully represent the interests of

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the class. Under these circumstances the Court finds Plaintiff to be an adequate class

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representative.

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As for counsel, Rule 23(g) lists four factors for consideration: (1) the work

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counsel has done in identifying or investigating potential claims in the action;

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(2) counsel’s experience in handling class actions or other complex litigation and the

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type of claims in the litigation; (3) counsel’s knowledge of the applicable law; and (4) the

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resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g).

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Plaintiff’s counsel represents that they are seasoned litigators with significant experience

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in wage-and-hour disputes and class actions. Hague Decl. at ¶¶ 22, 23; Sutton Decl. at

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¶¶ 15, 16.

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The Court has no reason to doubt these representations, and even Dollar Tree

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does not challenge the adequacy of Plaintiff’s counsel. Thus, this prerequisite is

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satisfied on counsel’s part as well.

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C.

The Putative Class Satisfied Both Requirements of Rule 23(b)(3)

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In addition to the requirements of Rule 23(a), a plaintiff must also satisfy one of

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the requirements of Rule 23(b). Hanlon, 150 F.3d at 1022. Plaintiff seeks to certify

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under subdivision (b)(3), which requires “that the questions of law or fact common to

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class members predominate over any questions affecting only individual members, and

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that a class action is superior to other available methods for fairly and efficiently

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adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Both of those issues—

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predominance and superiority—will be addressed in turn.

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Predominance of Common Questions

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“The predominance inquiry focuses on the relationship between the common and

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individual issues and tests whether proposed classes are sufficiently cohesive to warrant

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adjudication by representation.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,

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944 (9th Cir. 2009). “This calls upon courts to give careful scrutiny to the relation

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between common and individual questions in a case. Tyson Foods, Inc. v. Bouaphakeo,

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136 S. Ct. 1036, 1045 (2016). As the Supreme Court states:

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An individual question is one where members of a proposed
class will need to present evidence that varies from member
to member, while a common question is one where the same
evidence will suffice for each member to make a prima facie
showing [or] the issue is susceptible to generalized, classwide proof. The predominance inquiry asks whether the
common, aggregation-enabling, issues in the case are more
prevalent or important than the non-common, aggregationdefeating, individual issues.
Id. (citations and quotations omitted)
If indeed Dollar Tree’s wage-and-hour practices are determined to be unlawful

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through any of the theories espoused by Plaintiff, the same rationale as to that

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unlawfulness will apply to each potential class member. Because this outcome is best

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amenable to determination on a classwide basis without any particular individual inquiry,

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the Court finds that common questions predominate.

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In order to establish predominance under Rule 23(b)(3), Plaintiff must also show

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that “damages are capable of measurement on a classwide basis.” Comcast Corp. v.

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Behrend, 133 S. Ct. 1426, 1433 (2013). Dollar Tree claims that Plaintiff has failed to

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offer any expert testimony as to the appropriate measure of damages should the class

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be certified. Comcast does not stand for the proposition, however, that Plaintiff must

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calculate damages for all class members. Instead, “so long as the damages can be

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determined and attributed to a plaintiff’s theory of liability, damage calculations for

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individual class members do not defeat certification.” Lindell v. Synthes USA, Case

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No. 1:11-cv-02053-lJO-BAM, 2014 WL 841738 at *14 (E.D. Cal. Mar. 4, 2014); see also

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Johns v. Bayer Corp., 280 F.R.D. 551, 555 (S.D. Cal. 2012) (“The amount of damages is
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invariably an individual question and does not defeat class action treatment.”);

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Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089 (9th Cir. 2010).

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At the class certification stage, Plaintiff need only propose a valid method for

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calculating class wide damages such that a trier of fact could accurately calculate

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damages. Leyva v. Medline Industries, Inc., 716 F.3d 510, 514 (9th Cir. 2013). Here,

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Plaintiff’s counsel alleges they can discern from the daily and/or weekly timesheets both

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whether employees received the appropriate meal and rest period, and whether they

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were improperly subject to Dollar Tree’s time rounding practice. Counsel also claims

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that they can determine which employees were uncompensated for time standing in line

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by comparing actual break times to actual employee time punches. See Hague Decl.,

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¶¶ 16-18. Plaintiff’s statistical expert, Keith Mendes, states that given time and

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attendance data for putative class members, he can estimate damages by applying the

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appropriate rate of pay to the net harm suffered by the employee. See Mendes Decl.,

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¶¶ 27, 30. Mendes also proposes two methodologies for measuring the amount of time

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spent waiting in line to clock out for meal period. Id. at 31-33.

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Plaintiff’s damages model need neither be perfect nor “precisely correct.” See

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Vaccarino v. Midland Nat’l Life Ins. Co., Case No. 2:11-cv-05858-CAS(MANx), 2014 WL

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572365 at *10-13 (C.D. Cal. Feb. 3, 2014) (“Comcast requires that courts determine

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whether damages are susceptible of classwide measurement, not whether that

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measurement is precisely correct.”).

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Superiority of Class Action

Plaintiff must also establish that the proposed class action is the superior method

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for resolving the dispute as compared to available alternatives. “A class action is the

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superior method for managing litigation if no realistic alternative exists.” Valentino v.

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Carter-Wallace, Inc., 97 F.3d 1227, 1234-46 (9th Cir. 1996). The Ninth Circuit has

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recognized that a class action is a plaintiff’s only realistic method of recovery if there are

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multiple claims against the same defendant for relatively small sums. Local Joint Exec.

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Bd.of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163

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(9th Cir. 2001).

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As Plaintiff indicates, relative to the cost of litigation each proposed member’s

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individual claim is relatively small. This makes adjudication by a class action superior

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and weighs in favor of certifying a class. See Zinser v. Accfix Research Inst., Inc.,

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253 F.3d 1180, 1190 (9th Cir. 2001); Allen v. Hyland’s Inc., 300 F.R.D. 643, 671 (C.D.

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Cal. 2014).

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D.

Dollar Tree’s Opposition to Class Action Treatment Impermissibly
Turns on the Merits of Plaintiff’s Claims Themselves

Dollar Tree’s opposition to Plaintiff’s Motion for Class Certification consists

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primarily of arguments that Plaintiff cannot substantively prevail on the merits of the

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classwide claims he alleges against his employer. Dollar Tree claims, for example, that

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its production lines stop for more than the mandated thirty-minute meal period, and that

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employees are not working even if they must be physically at their work posts. Dollar

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Tree also claims that the actual work does not resume until several minutes after a shift

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is scheduled to begin, and that no employees have been subject to discipline for

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clocking in precisely at the start of the shift, or within five minutes thereafter.

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Additionally, with regard to calculation of employee regular rate of pay, Dollar Tree avers

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that bonuses cannot properly be included because, contrary to Plaintiff’s claim, they are

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discretionary and not necessarily always awarded.

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Those issues, however, are beyond the scope of whether a class action is

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indicated for purposes of certification. As the United States Supreme Court has

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recognized, “the right of a litigant to employ Rule 23 is a procedural right only.” See

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Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 332 (1980). To

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that end, as Plaintiff points out, the question of certification is “distinct from the merits”

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and “ancillary to the litigation of substantive claims.” See, e.g., id.; Garcia v. Gloor,

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618 F.2d 264, 267 (5th Cir. 1980). While substantive issues may inform the court in
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determining matters of commonality, typicality, or predominance, the question of

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“whether a class should be certified [nonetheless] depends entirely on whether the

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proposal satisfies the requirements of [Rule 23].” Garcia, 618 F.2d at 267; see also,

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e.g., Wright & A. Miller, Federal Practice and Procedure: Civil §§ 1759-1770 (1972).

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CONCLUSION

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Plaintiffs’ Motion for Class Certification (ECF No. 45) is GRANTED.

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2.

The Court HEREBY CERTIFIES the following classes and subclasses:

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Class 1 (“Bell & Line Class”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc.,

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who at any time within four (4) years preceding the filing of this action:

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a. Who were required to clock in and out for shifts and meal periods using

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a timeclock;

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b. Worked under a system that used a bell and/or radio call to signal the

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beginning and end of shifts and meal periods; and

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c. Are members of one or more Subclasses.

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Subclass A (“Minimum Wage Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution,

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Inc., who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California at

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any time; and

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b. Stood in line to clock in or out at any of the following times:

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The beginning of a shift;

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The beginning of a meal period;

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The end of a meal period; or

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The end of a shift.

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Subclass B (“Meal Period Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution,

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Inc., who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California at

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any time;

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b. Worked more than five (5) hours in a work day; and

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c. Stood in line to clock in or out at any of the following times:

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The beginning of a meal period; or

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The end of a meal period;

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Class 2 (“Handbook Class”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc.,

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who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California

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b. Received the “Handbook for Associates 2010: California Edition”; and

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c. Are members of one or more Subclasses.

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Subclass A (“First Meal Period Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution,

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Inc., who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California at

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any time; and

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b. Who worked more than five (5) hours in a work day.

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Subclass B (“Second Meal Period Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution,

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Inc., who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California at

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any time; and

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b. Who worked more that ten (10) hours in a work day.
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Subclass C (“Rest Period Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution,

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Inc. who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California at

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any time; and

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b. Worked three and one-half (3 ½) or more hours in a work day.

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Class 3 (“Rounding Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc.,

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who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California; and

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b. Used a timekeeping system that rounded clock in and clock out times to

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the nearest quarter hour.

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Class 4 (“Overtime Wage Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc.,

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who at any time within four (4) years preceding the filing of this action either:

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a) worked more than eight (8) hours in a week; or b) worked more than forty (40)

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hours in a workweek; and:

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a. Performed work for Dollar Tree Distribution, Inc. in California; and

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b. Either:

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Received the “MVP” bonus at least once;

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Received a “Special Non-Exempt” bonus at least once; or

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Are members of Classes 1, 2, or 3.

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Class 5 (“Waiting Time Penalty Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc. in

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California, who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California; and

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b. Were separated from employment at Dollar Tree Distribution, Inc.

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c. Are members of Classes 1, 2, 3, or 4.
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Class 6 (“Wage Statement Subclass”)

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All current and former non-exempt employees of Dollar Tree Distribution, Inc. in

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California, who at any time within four (4) years preceding the filing of this action:

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a. Performed work for Dollar Tree Distribution, Inc. in California; and

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b. Were provided one or more wage statements.

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c. Are members of Classes 1, 2, 3, or 4.

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Class 7 (“PAGA Class”)

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All members of Classes 1, 2, 3, 4, 5, and/or 6.

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3.

Plaintiff Terry T. Snipes Sr. is HEREBY APPOINTED as class representative;

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4.

Sutton Hague Law Corporation is HEREBY APPOINTED as class counsel.

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IT IS SO ORDERED.

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Dated: November 27, 2017

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