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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 NELSON GONZALEZ VILLA, on behalf of himself and all others similarly situated, ) ) ) Plaintiff, ) v. ) ) UNITED SITE SERVICES OF CALIFORNIA, ) INC., ) ) Defendant. ) ) ) 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 18 certification as to all proposed classes and subclasses, and granting Plaintiff’s motion for 19 conditional certification of a collective action pursuant to the Fair Labor Standards Act (FLSA). 20 ECF No. 120. Plaintiff has now sought clarification as to whether this Order denies Plaintiff’s 21 motion for certification of one subclass in particular: a subclass of drivers who did not receive a 22 second meal break. 23 The Court’s November 13, 2012 denial of certification was premised on a lack of sufficient 24 evidence that Defendants operated under a common policy as to the provision of breaks. The 25 Court ruled that neither Defendants’ written policies, nor other evidence of common practice, was 26 sufficient to establish that questions concerning the provision of breaks could be answered on a 27 class-wide basis. 28 1 Case No.: 12-CV-00318-LHK ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION 1 Plaintiff now suggests that these findings should not apply to the second meal-break 2 subclass. However, the only evidence discussed in Plaintiff’s briefing that is specific to the second 3 meal break is: (1) the fact that time sheets do not contain a specific place to record a second meal 4 break; (2) the deposition of one of Defendant’s Vice Presidents who did not know whether 5 employees actually took second meal breaks or not; and (3) the fact that the 206 declarations 6 submitted by Defendant indicate that employees often took paid breaks if they needed a second 7 break. None of these three pieces of evidence can establish that Defendant’s policy regarding 8 second meal breaks, unlike the rest of Defendant’s break policies, was uniquely company-wide. 9 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 10 break could just as easily reflect Defendant’s policy that overtime was supposed to be an exception, 11 not a routine occurrence, and that it required permission from a supervisor. See, e.g., Camp Decl. 12 Exh. 25 (Cortez Depo.) at 46:22-47:3. The fact that overtime may have been common does not 13 change the fact that Defendant’s policies required specific authorization from a supervisor, which 14 would afford the opportunity for specific arrangements regarding the taking and reporting of a 15 second break. There is no reason to believe that the absence of a particular blank on a preprinted 16 sheet designed for shorter shifts means that drivers were not allowed to take breaks. Instead, each 17 driver would have to prove what his supervisor permitted, with regards to overtime authorization. 18 This is thus an individual, not a common, question. 19 Second, the testimony of Defendant’s executives on which Plaintiff relies is inconclusive 20 for the same reasons explained in the November 13, 2012 Order: it simply does not suggest that 21 there was a company-wide practice or policy regarding the provision of meal breaks. See, e.g., 22 Camp Decl. Exh. 32 (Depo. of Mark Bartholomew) at 105:17-18 (“Again, I don’t know if they 23 took it or they didn’t.”). As explained in the November 13, 2012 Order, Defendant’s written policy 24 explicitly entrusted the scheduling of meal breaks to individual supervisors at each location. An 25 executive’s testimony that he did not know whether drivers actually did or did not take second 26 meal breaks cannot establish that there was a company-wide practice or policy of preventing such 27 breaks. At most, it establishes that the company did not uniformly require employees to take 28 second meal breaks. But the law does not require Defendant to make sure employees actually take 2 Case No.: 12-CV-00318-LHK ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION 1 meal breaks; it only requires that the breaks be made available. See Brinker Rest. Corp. v. Superior 2 Court, 53 Cal. 4th 1004 (2012). 3 Third, the Court has already clearly explained that it places no weight on the 206 4 declarations from current employees. Thus, even if they did say that workers were not allowed to 5 take a second off-duty meal break – which they do not – the Court would not find this evidence 6 persuasive. Furthermore, Plaintiff cannot both move to strike these declarations as coerced 7 because the declarations state that workers were given appropriate breaks, and simultaneously rely 8 on them to establish a common policy on a different aspect of Defendant’s practices. Thus, the 206 9 declarations do not provide evidence of a common policy unique to second meal breaks. United States District Court For the Northern District of California 10 In sum, Plaintiff has not presented any persuasive evidence that Defendant had a company- 11 wide policy of failing to allow second meal breaks where required. Accordingly, for the reasons 12 stated in the November 13, 2012 Order and the reasons stated above, Plaintiff’s motion to certify a 13 class of drivers who were not given a second meal break is DENIED. 14 IT IS SO ORDERED. 15 Dated: November 28, 2012 _________________________________ LUCY H. KOH United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No.: 12-CV-00318-LHK ORDER RE: PLAINTIFF’S REQUEST FOR CLARIFICATION

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