Villa v. United Site Services of California, Inc

Filing 123

ORDER by Judge Lucy H. Koh re 122 Motion for Clarification (lhklc2, COURT STAFF) (Filed on 11/28/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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NELSON GONZALEZ VILLA, on behalf of
himself and all others similarly situated,

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Plaintiff,
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v.
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UNITED SITE SERVICES OF CALIFORNIA, )
INC.,
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Defendant.
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Case No.: 5:12-CV-00318-LHK

ORDER RE: PLAINTIFF’S REQUEST
FOR CLARIFICATION

On November 13, 2012, this Court issued an Order denying Plaintiff’s motion for class

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certification as to all proposed classes and subclasses, and granting Plaintiff’s motion for

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conditional certification of a collective action pursuant to the Fair Labor Standards Act (FLSA).

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ECF No. 120. Plaintiff has now sought clarification as to whether this Order denies Plaintiff’s

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motion for certification of one subclass in particular: a subclass of drivers who did not receive a

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second meal break.

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The Court’s November 13, 2012 denial of certification was premised on a lack of sufficient

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evidence that Defendants operated under a common policy as to the provision of breaks. The

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Court ruled that neither Defendants’ written policies, nor other evidence of common practice, was

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sufficient to establish that questions concerning the provision of breaks could be answered on a

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class-wide basis.

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Case No.: 12-CV-00318-LHK
ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION

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Plaintiff now suggests that these findings should not apply to the second meal-break

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subclass. However, the only evidence discussed in Plaintiff’s briefing that is specific to the second

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meal break is: (1) the fact that time sheets do not contain a specific place to record a second meal

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break; (2) the deposition of one of Defendant’s Vice Presidents who did not know whether

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employees actually took second meal breaks or not; and (3) the fact that the 206 declarations

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submitted by Defendant indicate that employees often took paid breaks if they needed a second

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break. None of these three pieces of evidence can establish that Defendant’s policy regarding

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second meal breaks, unlike the rest of Defendant’s break policies, was uniquely company-wide.

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First, the fact that time sheets did not contain a specific line for recording a second meal

United States District Court
For the Northern District of California

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break could just as easily reflect Defendant’s policy that overtime was supposed to be an exception,

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not a routine occurrence, and that it required permission from a supervisor. See, e.g., Camp Decl.

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Exh. 25 (Cortez Depo.) at 46:22-47:3. The fact that overtime may have been common does not

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change the fact that Defendant’s policies required specific authorization from a supervisor, which

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would afford the opportunity for specific arrangements regarding the taking and reporting of a

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second break. There is no reason to believe that the absence of a particular blank on a preprinted

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sheet designed for shorter shifts means that drivers were not allowed to take breaks. Instead, each

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driver would have to prove what his supervisor permitted, with regards to overtime authorization.

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This is thus an individual, not a common, question.

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Second, the testimony of Defendant’s executives on which Plaintiff relies is inconclusive

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for the same reasons explained in the November 13, 2012 Order: it simply does not suggest that

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there was a company-wide practice or policy regarding the provision of meal breaks. See, e.g.,

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Camp Decl. Exh. 32 (Depo. of Mark Bartholomew) at 105:17-18 (“Again, I don’t know if they

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took it or they didn’t.”). As explained in the November 13, 2012 Order, Defendant’s written policy

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explicitly entrusted the scheduling of meal breaks to individual supervisors at each location. An

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executive’s testimony that he did not know whether drivers actually did or did not take second

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meal breaks cannot establish that there was a company-wide practice or policy of preventing such

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breaks. At most, it establishes that the company did not uniformly require employees to take

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second meal breaks. But the law does not require Defendant to make sure employees actually take
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Case No.: 12-CV-00318-LHK
ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION

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meal breaks; it only requires that the breaks be made available. See Brinker Rest. Corp. v. Superior

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Court, 53 Cal. 4th 1004 (2012).

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Third, the Court has already clearly explained that it places no weight on the 206

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declarations from current employees. Thus, even if they did say that workers were not allowed to

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take a second off-duty meal break – which they do not – the Court would not find this evidence

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persuasive. Furthermore, Plaintiff cannot both move to strike these declarations as coerced

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because the declarations state that workers were given appropriate breaks, and simultaneously rely

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on them to establish a common policy on a different aspect of Defendant’s practices. Thus, the 206

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declarations do not provide evidence of a common policy unique to second meal breaks.

United States District Court
For the Northern District of California

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In sum, Plaintiff has not presented any persuasive evidence that Defendant had a company-

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wide policy of failing to allow second meal breaks where required. Accordingly, for the reasons

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stated in the November 13, 2012 Order and the reasons stated above, Plaintiff’s motion to certify a

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class of drivers who were not given a second meal break is DENIED.

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IT IS SO ORDERED.

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Dated: November 28, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-00318-LHK
ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION