Bowlin v. Goodwill Industries of the Greater East Bay, Inc.

Filing 45

Order by Magistrate Judge Nathanael M. Cousins granting 29 Motion for Partial Summary Judgment.(nclc1, COURT STAFF) (Filed on 1/24/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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BILLY BOWLIN,
Plaintiff,

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ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

v.

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Case No. 12-cv-01593 NC

Re: Dkt. No. 29
GOODWILL INDUSTRIES OF THE
GREATER EAST BAY, INC.,

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Defendant.

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Plaintiff Billy Bowlin brings this suit against Defendant Goodwill, his former

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19 employer, for withholding of wages, failure to pay overtime, unlawful business practices,
20 and retaliation. Bowlin moves for partial summary judgment as to Goodwill‟s twenty-sixth
21 affirmative defense, arguing that a clause in the agreement between the parties shortening
22 the time in which Bowlin has to bring claims against Goodwill is unconscionable, rendering
23 the agreement unenforceable, and his claims timely. The issue is whether the six-month
24 limitations provision is unconscionable. Because Bowlin has shown the absence of a
25 genuine dispute of fact as to the provision‟s unconscionability, and Goodwill has failed to
26 set forth specific facts showing a dispute, the Court GRANTS Bowlin‟s motion for partial
27 summary judgment.
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Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

I. BACKGROUND

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2 A.

Bowlin’s Complaint

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Bowlin alleges that he was employed by Goodwill from February 6, 2008 through

4 April 20, 2011. Dkt. No. 1 ¶ 4. Bowlin started as an hourly employee and was required
5 “to work off-the-clock,” meaning he was told not to report his hours on his time card. Id. ¶
6 7. After Bowlin became a salaried employee, he worked approximately sixty hours per
7 week on a regular basis, but still Goodwill did not pay him overtime. Id. ¶ 8. Bowlin
8 alleges that Goodwill has a policy of not paying overtime to hourly employees and that
9 managers instructed him to falsify timecards not to reflect overtime worked. Id. ¶¶ 48, 49.
10 Bowlin states that he complained to his supervisor about not receiving overtime and
11 refused to falsify the timecards. Id. ¶¶ 47, 50. In response, Goodwill terminated his
12 employment. Id. ¶ 51. Prior to complaining about the lack of overtime pay, Bowlin claims
13 that Goodwill did not have any problems with him as an employee. Id. at 53.
Bowlin brings five claims against Goodwill: (1) failure to pay overtime

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15 compensation under California law; (2) failure to pay unpaid and owed wages to Bowlin in
16 violation of California Labor Code § 203; (3) failure to pay overtime pay under the Fair
17 Labor Standards Act (“FLSA”); (4) unlawful business practices under California Business
18 and Professions Code § 17200; and (5) retaliatory termination for complaining about
19 unpaid overtime. See Dkt. No. 1. He seeks damages, restitution and disgorgement under
20 his §17200 claim, interest, costs, and fees. Id.
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Bowlin’s Motion for Partial Summary Judgment and Goodwill’s Opposition

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Bowlin moves for partial summary judgment arguing that the employment

23 agreement, which Goodwill asserts bars his claims, is unconscionable. Dkt. No. 29. On
24 April 4, 2008, he signed an agreement which contains the following provision:
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In consideration of my employment, I agree that I will not commence any
action or suit relating to my employment with Goodwill Industries of the
Greater East Bay Inc. more than 6 months after the date of termination of my
employment. I also agree to waive any statute of limitation that may provide
a longer period. Dkt. No. 32 at 12.

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Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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Bowlin contends that the agreement is procedurally unconscionable because no one

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2 from Goodwill reviewed the terms of the agreement with him, he was not able to discuss or
3 negotiate the terms, and he was given the agreement to sign while he was working. Dkt.
4 No. 29-1. He argues that the agreement is substantively unconscionable as well because
5 the sixth-month limit it imposes on claims brought by an employee against Goodwill is
6 unreasonable, benefits Goodwill to the detriment of the employee, and contravenes
7 statutory rights afforded by the FLSA and California law. Dkt. No. 29 at 10-15.
In the alternative, Bowlin claims the agreement is void under California Labor Code

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9 § 206.5, which invalidates waivers and releases when wages are due to an employee. Id. at
10 15-16. He argues that because he was made to sign the agreement two months after
11 beginning his job at Goodwill, he was owed wages, and any release of his rights as a
12 condition to receive those wages is void. Id. at 16.
Goodwill opposes the motion, arguing that there is an enforceable contract that bars

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14 Bowlin‟s untimely claims. Dkt. No. 32. It disputes Bowlin‟s assertion of procedural
15 unconscionability, id. at 4, and submits the declaration of a human resources administrator.
16 who explains Goodwill‟s process of presenting the agreement to new employees, dkt. no.
17 32-1. Goodwill argues that there is nothing inherently unreasonable about the six-month
18 limitations period for bringing claims against it, and that California law recognizes the
19 rights of parties to shorten statutes of limitations by contract. Dkt. No. 32 at 7-8.
20 C.

This Court’s November 2, 2012 Order

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The Court deferred ruling on Bowlin‟s motion because Goodwill did not respond to

22 Bowlin‟s assertions as required by Federal Rule of Civil Procedure 56(c) and (e), nor show
23 why the responsive facts were unavailable under Rule 56(d). Specifically, the declaration
24 submitted by Goodwill of Griselda Guzman, senior human resources administrator, did not
25 address Bowlin‟s assertions that he was not given time to review the agreement, that he
26 could not negotiate the terms, and that he was already owed wages at the time the form was
27 given to him to sign. The Court ordered Goodwill to submit additional facts or make a
28 showing of unavailability under Rule 56(d).
Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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1 D.

Goodwill’s Further Opposition

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Goodwill asserts in its further opposition that Bowlin was not owed overtime at the

3 time he signed the waiver at issue. Dkt. No. 40 at 2. Because Bowlin brings a claim for
4 unpaid overtime only, and not other forms of compensation, Goodwill argues, his claims
5 are essentially moot. Id. Furthermore, Goodwill contends that California Labor Code
6 § 206.5 requires that the claims asserted by a plaintiff be identical to the claims purportedly
7 released by the agreement. Id. at 3. Because Bowlin claims unpaid overtime, he cannot
8 rely on the fact that he was owed regular wages to invalidate the agreement under § 206.5.
9 Id. Moreover, the issue of whether Bowlin was owed overtime wages was not at issue at
10 the time the parties signed the agreement. Id.
In support of its assertions, and in response to the Court‟s order, Goodwill submits a

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12 second declaration from Guzman, along with printouts of Bowlin‟s timecards from
13 Goodwill‟s personnel software system. Dkt. No. 40-1. Goodwill asserts that it has lost
14 contact with Marjorie Myrick, whose signature and initials appear on the agreement at
15 issue, and cannot locate her to obtain a declaration about the conditions under which
16 Bowlin signed the contract. Dkt. No. 40 at 4. Goodwill states, however, that Guzman
17 worked at Goodwill at the time that Bowlin signed the employment agreement, and that as
18 a matter of company policy, any dispute of terms or desire to negotiate would have been
19 brought to her attention. Id.
In his reply, Bowlin disputes that Goodwill has met its burden to show that a genuine

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21 issue of fact exists as to whether he was afforded the opportunity to negotiate the terms of
22 the employment agreement. Dkt. No. 41.
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Jurisdiction

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This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331, 1367. All

25 parties have consented to the jurisdiction of a United States magistrate judge in accordance
26 with 28 U.S.C. § 636(c). See Dkt. No. 13.
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Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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II. STANDARD OF REVIEW

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Summary judgment may be granted only when, drawing all inferences and resolving

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3 all doubts in favor of the non-moving party, there are no genuine issues of material fact and
4 the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
5 Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under governing
6 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
7 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is
8 such that a reasonable jury could return a verdict for the nonmoving party.” Id. Bald
9 assertions that genuine issues of material fact exist are insufficient. Galen v. County of Los
10 Angeles, 477 F.3d 652, 658 (9th Cir. 2007).
The moving party bears the burden of identifying those portions of the pleadings,

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12 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact.
13 Celotex, 477 U.S. 317, 323 (1986). Once the moving party meets its initial burden, the non14 moving party must go beyond the pleadings and, by its own affidavits or discovery, set forth
15 specific facts showing that a genuine issue of fact exists for trial. Fed. R. Civ. P. 56(c). All
16 reasonable inferences, however, must be drawn in the light most favorable to the non17 moving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
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III. DISCUSSION

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A court may refuse to enforce a contract, or any clause of a contract, it finds to be

20 unconscionable. Cal. Civ. Code § 1670.5. Both procedural and substantive
21 unconscionability must be present in order for a court to refuse to enforce a contract or
22 clause under the doctrine of unconscionability, but they need not be present in the same
23 degree. Armendariz v. Found. Health Psychcare Services, Inc., 6 P.3d 669, 690 (Cal.
24 2000). Rather, unconscionability is analyzed on a “sliding scale”: “the more substantively
25 oppressive the contract term, the less evidence of procedural unconscionability is required
26 to come to the conclusion that the term is unenforceable, and vice versa.” Id.
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Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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A.

Because Bowlin Had No Opportunity to Negotiate Terms, the Contract Is
Procedurally Unconscionable.
“The threshold inquiry in California‟s unconscionability analysis is „whether the . . .

3 agreement is adhesive.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1281 (9th Cir.
4 2006) (quoting Armendariz, 6 P.3d at 689). A contract of adhesion is “a standardized
5 contract, which, imposed and drafted by the party of superior bargaining strength, relegates
6 to the subscribing party only the opportunity to adhere to the contract or reject it.”
7 Armendariz, 6 P.3d at 689. A finding that a contract is adhesive is essentially a finding of
8 procedural unconscionability. Nagrampa, 469 F.3d at 1281; Circuit City Stores, Inc. v.
9 Adams, 279 F.3d 889, 893 (9th Cir. 2002) (“The [contract] is procedurally unconscionable
10 because it is a contract of adhesion. . . .); Flores v. Transamerica HomeFirst, Inc., 113 Cal.
11 Rptr. 2d 376, 382 (Cal. Ct. App. 2001). The critical factor for determining both adhesion
12 and procedural unconscionability is whether the contract “was presented on a take-it-or13 leave-it basis” and “oppressive due to an inequality of bargaining power that result[ed] in
14 no real negotiation and an absence of meaningful choice.” Nagrampa, 469 F.3d at 1281.
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Goodwill‟s senior human resources administrator, Grizelda Guzman, states that “all

16 employees were presented with [agreement at issue] in 2008.” Dkt. No. 32-1 ¶ 5. This
17 suggests that the agreement was a standard contract, drafted by Goodwill. As the moving
18 party, however, it is Bowlin‟s burden to show that there is no genuine factual dispute that
19 the manner in which the contract was presented to him renders it procedurally
20 unconscionable. To this end, Bowlin submits a declaration and avers that “a manager
21 presented [him] with a copy of the agreement . . . to initial and sign while [he] was
22 working,” that no one “reviewed the terms or content of the agreement with [him],” and that
23 he “was not able to discuss, negotiate or modify any of the terms or content of the
24 agreement.” Dkt. No. 29-1 ¶¶ 2-4.
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Even after the Court granted Goodwill leave to submit additional facts to respond to
26 Bowlin‟s assertions, Goodwill fails to establish a dispute of material fact. Marjorie Myrick,
27 left Goodwill and the company is unable to contact her to take her declaration. Dkt. No. 4028
Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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1 1 ¶ 8. Goodwill again submitted a declaration of Guzman in which she states that she did
2 not personally give Bowlin the agreement. Id. ¶ 5. Guzman avers that “If an employee of
3 Goodwill chose to dispute any terms or wish [sic] to negotiate terms, Ms. Myrick would
4 have been obligated to bring such an occurrence to my attention.” Id. ¶ 7. She states that
5 Myrick “never brought up any issues with Bowlin wishing to dispute or negotiate” the
6 terms of the agreement. Id.
Guzman‟s declaration still does not address Bowlin‟s assertions as required under

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8 Rule 56. Specifically, Guzman‟s statements do not establish that Myrick followed her
9 training or company policy generally, or that she followed the policy when she presented
10 the release form to Bowlin. Therefore, under Rule 56(e) the Court finds undisputed the fact
11 that Bowlin was presented with a standard form, drafted by Goodwill, and was denied the
12 opportunity to discuss or negotiate the terms. Accordingly, the Court finds that as a matter
13 of law, the agreement is procedurally unconscionable.
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The Sixth-Month Limitations Provision Is One-Sided and Overly Harsh.

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A contract is substantively unconscionable if it creates “overly harsh or one-sided

16 results.” Armendariz, 6 P.3d at 690. If there is a lack of mutuality in the contract, it must
17 be accompanied by a reasonable justification. Id. at 692. When analyzing the
18 enforceability of contractual limitations on the period in which an employee can bring suit
19 against its employer, the Ninth Circuit has not been consistent. For example, in Davis v.
20 O’Melveny & Myers, 485 F.3d 1066, 1076 (9th Cir. 2007), the court held that “forcing
21 employees to comply with a strict one-year limitations period for employment-related
22 statutory claims is oppressive.” Likewise, in Ingle v. Circuit City Stores, Inc., 328 F.3d
23 1165, 1175 (9th Cir. 2003), and Adams, 279 F.3d at 894, the Ninth Circuit found that a
24 provision requiring employees to arbitrate claims arising out their employment within one
25 year lacked the “modicum of bilaterality” required under California law and was therefore
26 substantively unconscionable. Conversely, in Soltani v. W. & S. Life Ins. Co., 258 F.3d
27 1038, 1044 (9th Cir. 2001), the court held that a six-month contractual limitations provision
28 is not substantively unconscionable under California law.
Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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Soltani is distinguishable from the instant case for several reasons. First, in reaching

2 its conclusion, the Soltani court relied on only one California case in the employment
3 context, Beeson v. Schloss, 192 P. 929 (Cal. 1920), which predates both the California wage
4 and hour statutes and the FLSA upon which Bowlin bases his claims. More recently,
5 California courts have found six-month limitations provisions “unconscionable and
6 insufficient to protect . . . employees‟ right to vindicate their statutory rights.” Martinez v.
7 Master Prot. Corp., 12 Cal. Rptr. 3d 663, 672 (Cal. Ct. App. 2004).
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Second, in Soltani, unlike here, “appellants cited no case specifically striking down a

9 contractual provision shortening a limitations period.” Id. at 1042. Since Soltani, the Ninth
10 Circuit itself has struck down contractual provisions shortening limitations periods. And
11 the Ninth Circuit precedent the Soltani court relied upon, Han v. Mobil Oil Corp., 73 F.3d
12 872, 877 (9th Cir. 1995), is equally inapposite to the instant case. In Han, the party
13 bringing suit did not contest the reasonableness of the one-year limitations period in the
14 contract, and the panel explicitly noted that the limitation was reasonable because it
15 “generally manifests no undue advantage and no unfairness.” As discussed above, Bowlin
16 did not have the opportunity to negotiate, and the contract does not impose the same six17 month limit on Goodwill.
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Last, the Soltani court found persuasive that the statutes at issue in that case also set a

19 limitations period of six months. Here, in contrast, Bowlin has two years to bring a claim
20 under the FLSA, and three for a willful violation of the Act. McLaughlin v. Richland Shoe
21 Co., 486 U.S. 128, 135 (1988). The California provisions upon which he bases claims have
22 three and four-year statutes of limitations. See Cal. Civ. Proc. Code § 338; Cal. Bus. &
23 Prof. Code § 17200.
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Admittedly, Davis, Ingle, and Adams were decided, in part, out of concern that a one-

25 year limitations period would preclude employees from bringing discrimination claims
26 under the theory of “continuing violations.” Davis, 485 F.3d at 1077. Bowlin does not
27 bring a discrimination claim or assert a continuing violation. Rather, he alleges that
28 Goodwill failed to pay overtime wages earned by him, that it had a policy of forcing
Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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1 employees not to report overtime worked on their timecards, and that when he complained
2 about not being paid, Goodwill fired him. Nevertheless, in light of the distinctions between
3 this case and Soltani, the Ninth Circuit‟s recent precedent finding a one-year limitations
4 provision substantively unconscionable is more analogous and thus more persuasive.
5 Furthermore, applying California‟s sliding scale approach, the provision need not be as
6 substantively unconscionable given the procedurally unconscionable manner in which the
7 adhesive agreement was presented to Bowlin. The Court thus concludes that the six-month
8 limitations provision is one-sided because it applies only to the employee, overly harsh
9 because it is considerably shorter than the limitations periods provided by statute, and
10 oppressive according to Ninth Circuit precedent.
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The Unconscionable Provision May Be Severed from the Agreement.

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Bowlin does not contend that other aspects of the agreement are substantively

13 unconscionable. And, it does not appear that the remainder of the agreement is so
14 “permeated by unconscionability” that the unenforceability of the contract cannot be cured
15 by severing the limitations provision. Armendariz, 6 P.3d at 695. Rather, the one-sidedness
16 is confined to a single provision. Accordingly, the Court severs the unconscionable six17 month limitations provision from the employment agreement.
IV. CONCLUSION

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Because the limitations provision is procedurally and substantively unconscionable, it

20 is unenforceable and does not bar Bowlin‟s claims. The Court GRANTS Bowlin‟s motion
21 for partial summary judgment on this issue.
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IT IS SO ORDERED.

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Date: January 24, 2013

_________________________
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 12-cv-01593 NC
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT

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