Chavez v. Converse, Inc. et al

Filing 144

ORDER GRANTING CONVERSE'S MOTION FOR SUMMARY JUDGMENT; ORDER DENYING AS MOOT CHAVEZ'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Re: Dkt. Nos. #118 , #124 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 10/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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ERIC CHAVEZ,
Plaintiff,

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v.
CONVERSE, INC.,
Defendant.

Case No. 15-cv-03746 NC
ORDER GRANTING CONVERSE’S
MOTION FOR SUMMARY
JUDGMENT; ORDER DENYING AS
MOOT CHAVEZ’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
Re: Dkt. Nos. 118, 124

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Like any person who has worked in the service industry on an hourly basis, plaintiff

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Eric Chavez wanted to make sure he was being paid for every moment he was working for

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his employer, Converse, Inc. Converse has, and has had since the inception of the class

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period, a policy that requires that its employees be inspected by a manager before they

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leave their store’s premises. The Court previously certified the class that Chavez seeks to

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represent, and both parties filed motions for summary judgment. Converse moves for

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summary judgment on the basis that the de minimis doctrine applies and that, based on its

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expert’s study, the doctrine bars Chavez’s claims. Chavez moves for partial summary

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judgment on one issue: that by requiring all class members to undergo exit inspections

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before leaving the premises, the class members were under Converse’s control and should

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be paid for that time. Both motions are considered in this order.
Case No. 15-cv-03746 NC

For the reasons stated below, the Court finds that the de minimis doctrine applies to

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California Labor Code claims for unpaid wages under current law, and that Converse has

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met its burden in proving there is no genuine dispute of material fact as to the durations of

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the exit inspections being de minimis. The Court GRANTS Converse’s motion for

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summary judgment, and DENIES AS MOOT Chavez’s partial summary judgment motion.

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I.

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BACKGROUND
A.

Undisputed Facts

Chavez was a non-exempt hourly employee at Converse’s Gilroy store from

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September 2010 to October 2015. Dkt. No. 124 at 8. Every time Chavez left the Converse

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store during or after a shift, he was required to undergo an exit inspection, which consisted

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United States District Court
Northern District of California

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of a visual inspection and a bag check, if he was carrying a bag. Id. Converse did not pay

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Chavez for the time these exit inspections took or the time spent waiting for a manager to

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come and inspect him, if a wait was required.

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Converse operates 20 stores in California. Id. at 6. According to the deposition of

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Kimberly Kiefer, Converse keeps employee time clocks in the break room or locker area in

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the back of each store, behind the stockroom. Id. All exit inspections are supposed to be

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conducted at the “point of exit,” which is located at the front of the store. Id. at 7. If an

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employee refuses to cooperate with an exit inspection, or interferes or hinders the search in

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any way, that employee “may be suspended pending further investigation which may

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include termination.” Dkt. No. 124-1 at 41 (Store Exit Search 5.01), 43. Converse has

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maintained the same policy since at least 2011. Dkt. No. 124 at 7.

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B.

Procedural History

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This case was filed in Santa Clara County Superior Court on July 10, 2015. Dkt.

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No. 1. Converse removed this case on August 17, 2015. Id. The operative complaint is

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the First Amended Complaint. Dkt. No. 28. The Court granted Converse’s motion for

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partial summary judgment on certain claims. Dkt. No. 80. The live claims in this case are

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for violations of (1) California Labor Code §§ 1194, 1197, and 1197.1; (2) Labor Code §§

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226.7 and 512; and (3) Labor Code § 226.7. See Dkt. No. 26, Dkt. No. 80 (order granting
Case No. 15-cv-03746 NC

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partial summary judgment as to claims 2, 5, 6, and 7).
The Court certified the following class on September 22, 2016: “All current and

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former non-exempt retail store employees of Converse who worked in California during

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the period from July 10, 2011, to the present.” Dkt. No. 89 at 2. The question common to

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all class members was whether the exit inspections occurred off-the-clock, such that the

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class would otherwise have been paid for the time it took for the exit inspection to occur,

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including any wait time.
Converse moves for summary judgment as to the entire complaint and Chavez

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moves for partial summary judgment. Dkt. Nos. 118, 124. The issues before the Court

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are: (1) whether the de minimis doctrine applies; (2) how long the exit inspections took;

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United States District Court
Northern District of California

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and (3) whether under the de minimis doctrine, the exit inspections are compensable. Both

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parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt.

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Nos. 12, 14.

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C.

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Expert Evidence
1.

The Crandall Study

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Converse offers a time and motion study by Robert W. Crandall, MBA. A time and

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motion study is a tool that “collects granular level data on workers’ activities of measuring

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the amount of time it takes to perform certain tasks.” Dkt. No. 118-3 at 6. Crandall

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considered 436 exit inspections, categorizing the parts of the inspections as waiting time

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and bag checks or visual inspections. Crandall did not consider the time it took for an

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employee to pack up and walk to the front of the store after clocking out. See id. at 20.

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Crandall defines waiting time as “the time spent while waiting at the point of exit for an

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authorized person to arrive to perform a bag check or visual inspection.” Id. at 9. A “bag

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check” is “the time spent while a manager or authorized person actually searches a bag or

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other container that can hold merchandise in the possession of an employee before exiting

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the store. A bag check may involve a request for an employee to open or unzip a bag so

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that its contents may be viewed.” Id. at 9-10. A visual inspection is “the time spent while

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a manager or authorized person views an employee exiting the store, who does not have a
Case No. 15-cv-03746 NC

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bag or other container that can hold merchandise.” Id. at 10.
290 out of the 436 exits (66.5%) observed had no wait time. Dkt. No. 118-3 at 20.

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146 out of 436 exit inspections had some wait time. 120 out of 146 inspections (82.2%)

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had a wait time of 30 seconds or less. Id. 126 out of 146 inspections (86.3%) had wait

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times of 45 seconds or less. Id. 128 out of 146 inspections (87.7%) had wait times of one

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minute or less. Id. 144 out of 146 inspections (98.6%) had a wait time of two minutes or

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less. Id. The average wait time was 7.1 seconds, ±1.9 seconds at a 95% confidence level,

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which constitutes a 27.2% margin of error. Id. at 21. Per Crandall, if his findings were

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extrapolated to the entire class, the average wait time would be “between 5.1 seconds to

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United States District Court
Northern District of California

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9.0 seconds at 95% confidence.” Id.
As for bag checks, there were no bag checks for 67.7% of inspections observed. Id.

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at 22. Where only a visual inspection occurred, the average duration of the visual

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inspection was 2.3 seconds ±0.5 seconds at a 95% confidence level, constituting a 23.3%

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margin of error. Id. at 23. Per Crandall, if his findings were extrapolated to the entire

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class, the average visual inspection is between 1.8 at 2.8 seconds. Id. Bag checks

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occurred the other 32.3% of the time, and 53.2% of those bag checks lasted less than 3

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seconds. Id. 100% of the bag checks observed took less than 30 seconds. Id. at 24.

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95.4% of the observed exit inspections, combining wait time, visual inspections, and bag

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checks, took less than one minute. Id. at 25. 99.5% of exits combining wait time, visual

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inspections, and bag checks took less than 2 minutes. Id. The average combined time for

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an exit was 9.2 seconds ±2 seconds at a 95% confidence level, which constitutes a margin

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of error of 21.4%. Id.

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2.

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Chavez’s Evidence

Chavez challenges the Crandall Study, but does not offer the findings of a different

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study or a survey. Chavez retained expert Brian Kriegler, Ph.D. to evaluate and critique

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the Crandall Study. Kriegler challenges the reliability of the Crandall study on numerous

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grounds, the most significant of which is the short period of time that the Crandall Study

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sampled from, which according to Kriegler makes the study unrepresentative of the rest of
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the class period. Dkt. No. 132 at 4. Kriegler also criticizes the Crandall Study’s failure to

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consider the time it took for employees to walk from the back of the store to the front after

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clocking out but prior to the exit inspection. Id. Kriegler found that failure to consider

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travel time led to underreported exit inspection times. Id. at 8.

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Kriegler also considered the deposition testimony of 12 randomly selected class

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members1 and found that the average combined exit inspection time among those class

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members was 144 seconds. Id. at 15. Kriegler did not provide detail as to how he

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calculated these averages in his declaration. Converse questioned Kriegler regarding his

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methodology for calculating the 144 seconds at his deposition, and Kriegler stated the
number came from taking the “midpoint of the typical ranges provided by the deponents.”

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United States District Court
Northern District of California

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Dkt. No. 138-1 at 18 (Kriegler Dep.). Once Kriegler was asked to weigh the exit

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inspection durations based on the number of days each of the deposed employees worked,

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he lowered his average midpoint to 114 seconds. Id. at 25-27.

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II.

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

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resolving all doubts in favor of the nonmoving party, there is no genuine dispute as to any

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material fact. Fed. R. Civ. P. 56(a); Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014);

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under

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governing substantive law, it could affect the outcome of the case. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the

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evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

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Bald assertions that genuine issues of material fact exist are insufficient. Galen v. Cnty. of

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L.A., 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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discovery, and affidavits that demonstrate the absence of a genuine issue of material fact.

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The deponents were Osvaldo Castro, Jessica Chin, Matthew Cornejo, Christian
Escobedo, Julie Garcia, Leann Hannible, Angelica Leano, Julian Martinez, Dominic
Passanisi, Michelle Rodriguez, Oscar Salomon, and Stephanie Sanchez. Dkt. No. 132 at
34.
Case No. 15-cv-03746 NC
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Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the nonmoving

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party must go beyond the pleadings, and, by its own affidavits or discovery, set forth

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specific facts showing that a genuine issue of fact exists for trial. Fed. R. Civ. P. 56(c);

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Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1004 (9th Cir. 1990) (citing Steckl v.

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Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). All justifiable inferences, however,

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must be drawn in the light most favorable to the nonmoving party. Tolan, 134 S. Ct. at

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1863 (citing Liberty Lobby, 477 U.S. at 255).

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III. DISCUSSION
The issues before the Court are whether the de minimis doctrine applies to Chavez’s

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United States District Court
Northern District of California

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claims, and if so, whether Converse satisfies the requirements of the doctrine.

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The De Minimis Doctrine Applies to Chavez’s California Labor Code
Claims For Unpaid Wages Under Current Law.

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Converse seeks summary judgment against the certified class on the basis that the

A.

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amount of time spent by its employees undergoing visual and bag inspections is de

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minimis. If this time is considered de minimis, it is not compensable. Chavez argues that

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the de minimis doctrine does not apply to his California Labor Code claims.

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Converse must prove the applicability of the de minimis doctrine at trial. See

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Gillings v. Time Warner Cable LLC, 583 Fed. Appx. 712, 714 (9th Cir. 2014) (citing Rutti

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v. Lojack Corp., 596 F.3d 1046, 1057 n.10 (9th Cir. 2010)). Likewise, as the movant on

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summary judgment, Converse must show an absence of any genuine issue of material fact

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on the de minimis doctrine. If Converse satisfies its burden, Chavez must demonstrate that

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a genuine issue of material fact does exist on the de minimis doctrine.

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To determine if the amount of time at issue is de minimis, courts must consider: “(1)

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the practical administrative difficulty of recording the additional time; (2) the aggregate

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amount of compensable time; and (3) the regularity of the additional work.” Lindow v.

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United States, 738 F.2d 1057, 1063 (9th Cir. 1984). “The Ninth Circuit has held that de

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minimis is appropriately characterized as a ‘doctrine’ or ‘rule’ rather than an affirmative

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defense that must be pled by a defendant.” Rodriguez v. Nike Retail Servs., Inc., No. 14Case No. 15-cv-03746 NC

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cv-01508 BLF, 2017 WL 4005591, at *6 (N.D. Cal. Sept. 12, 2017) (citing Corbin v. Time

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Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069, 1080 (9th Cir. 2016)).

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Because the California Labor Code is under state law, and the de minimis doctrine

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arose in the context of the Federal Fair Labor Standards Act (FLSA), there is a question

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regarding whether the doctrine applies to claims for unpaid wages under the California

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Labor Code. As of the date of this order, the California Supreme Court has not answered

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this question, though the Ninth Circuit and California courts of appeal have applied the

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doctrine to such claims under California law. See, e.g., Gillings v. Time Warner Cable

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LLC, 583 Fed. Appx. 712, 714 (9th Cir. 2014) (collecting cases and noting the open
question); Corbin, 821 F.3d at 1081 n.11; Gomez v. Lincare, Inc., 173 Cal. App. 4th 508,

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United States District Court
Northern District of California

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527 (2009). Chavez has not pointed to, and the Court has found no case where a court held

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that the de minimis doctrine did not apply to California Labor Code claims. See Gillings,

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583 Fed. Appx. at 714; Rodriguez, 2017 WL 4005591, at *6.

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As District Court Judge Beth Freeman recently pointed out, however: “[t]he silence

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from California’s highest court on the applicability of the de minimis doctrine to California

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Labor Code claims may soon be broken.” Rodriguez, 2017 WL 4005591, at *7. This is

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because review is pending before the California Supreme Court on this issue. Troester v.

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Starbucks Corp., Case No. S234969; see Troester v. Starbucks Corp., 680 Fed. Appx. 511,

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512 (9th Cir. 2016). However, the Court is bound by Ninth Circuit precedent saying that

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the de minimis doctrine does apply to claims for unpaid wages under the California Labor

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Code. The de minimis doctrine applies to all claims in this case.

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B.

The Lindow Test’s Factors Are Satisfied.

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Before applying the elements of Lindow, the Court first considers the amount of

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time spent on the exit inspections. The Court then considers the following elements of

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Lindow to determine if exit inspections were de minimis: “(1) the practical administrative

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difficulty of recording the additional time; (2) the aggregate amount of compensable time;

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and (3) the regularity of the additional work.” 738 F.2d at 1063.

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1.

The Durations of the Exit Inspections

The parties dispute whether the amount of time the exit inspections took is de

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minimis, and thus not compensable. The three-pronged Lindow test strikes “a balance

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between requiring an employer to pay for activities it requires of its employees and the

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need to avoid ‘split-second absurdities’ that ‘are not justified by the actuality of the

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working conditions.’” Rutti, 596 F.3d at 1057 (quoting Lindow, 738 F.2d at 1062).

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Further, “[a]n important factor in determining whether a claim is de minimis is the amount

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of daily time spent on the additional work. Lindow, 738 F.2d at 1062. “There is no precise

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amount of time that may be denied compensation as de minimis.” Id. “Most courts have
found daily periods of approximately 10 minutes de minimis even though otherwise

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Northern District of California

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compensable.” Id. (collecting cases); see also Rodriguez, 2017 WL 4005591, at *11.

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a.

Evidence Presented

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Both parties retained experts. However, only Converse offered the Court a study of

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exit inspection durations. The Crandall Study found that 66.5% of exit inspections had no

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wait time, and 94.04% (410/436) of exit inspections had a wait time of 30 seconds or less.

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See Dkt. No. 118-3 at 20. 95.9% (418/436) of exit inspections had a wait time of one

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minute or less. See id. 99.5% (434/436) of exit inspections had a wait time of 2 minutes

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or less. See id. The average wait time was 7.1 seconds ±1.9 seconds. Id. at 21. Visual

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inspections occurred 67.7%, and bag checks occurred the other 32.3% of the time. Id. at

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22. Visual inspections took less than 20 seconds 100% of the time, and the average

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duration of a visual inspection was 2.3 seconds. Id. at 23. As for bag checks, 100% of bag

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checks took less than 30 seconds, and the average duration was 5.4 seconds. Id. at 24. In

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total, 95.4% of exit inspections took less than one minute, 99.5% took less than 2 minutes,

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and the average exit inspection took between 7.2 and 11.2 seconds. Id. at 25.

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Chavez offered the Kriegler Declaration, but it is primarily dedicated to poking

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holes in the Crandall Study. Kriegler does not address the de minimis factors, though he

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does provide alternate exit inspection durations. Because the Court may not weigh the

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evidence or make credibility determinations on summary judgment,2 see Anderson, 477

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U.S. at 255, the Court will not consider Chavez’s attempt to discredit the Crandall Study.

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See Rodriguez, 2017 WL 4005591, at *8-9. The Court will consider the average duration

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of the exit inspections based on the class member depositions, as calculated by Kriegler.

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The Court will not consider the Supplemental Crandall or Kriegler Declarations, as they

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were untimely and improperly submitted.
In addition, the Court will consider the deposition testimony of class members. Not

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all of the depositions were discussed in the briefing, though Chavez’s opposition to

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Converse’s motion contained excerpts of several class member depositions. Because
Chavez relied on these depositions, and because the Court was unsatisfied with Chavez’s

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United States District Court
Northern District of California

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production of cherry-picked excerpts, the Court ordered the parties to produce all 23

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depositions. These depositions are important because they suggest that the exit inspections

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took longer than the Crandall Study found. The Court will consider whether the deposition

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testimony is sufficient to create a triable issue of fact as to whether the duration of the exit

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inspections was de minimis. Id. at *10.

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The Court summarizes the deposition testimony:

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Deponent
William
Osvaldo
Castro

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1.

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Exit Inspection Durations
Searched for manager 20-25% of the time for
exit inspections. Dkt. No. 143 at 143. Waited
10% of the time after notifying. Id. at 144.
Where waiting was required, 25% of those
inspections took 3-5 minutes. Id. at 149. 60%
took 1-3 minutes, and 15% took under 1 minute.
Id. at 149-150. Visual inspections and bag
checks took a few seconds. Id. at 151, 163.

Exit Frequency
Left the premises
30-40% of the time
on rest breaks. Id.
at 139. Left the
premises 75% of
the time for meal
breaks.

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In Rodriguez v. Nike, the parties also retained experts Crandall and Kriegler. These cases
are almost identical, and Nike owns Converse. Like in this case, the Kriegler Declaration
in Rodriguez sought to raise doubt as to the reliability of the Crandall Study. Judge
Freeman reached the same conclusion as this Court in finding that such arguments were
not appropriate at summary judgment. Judge Freeman construed the objection to the
Crandall Study as a motion to strike under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 2017 WL 4005591, at *8-9. Here, like in
Rodriguez, the Court does not find that the Crandall Study is so unreliable as to require
exclusion. That Kriegler came to a different conclusion as to exit inspection durations than
Crandall does not necessitate the disregard of the Crandall Study.
Case No. 15-cv-03746 NC
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2.

Matthew
Cornejo

3.

Christian
Escobedo

4.

Julie
Garcia

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United States District Court
Northern District of California

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Waited for a manager to conduct an exit
inspection 25% of the time. Id. at 367. 60% of
the time the exit inspection process took 30-60
seconds, as the bag check itself took 30 seconds.
Id. at 372, 374. Visual inspections took about 5
seconds. Id. at 381. The other 40% of the time,
the exit inspection process took between 2-5
minutes. Id. at 361. On 10-15 occasions, waited
10 minutes for inspection, but that was based on
something going wrong at the store. Id. at 38485.
Waited for exit inspection 100% of the time. Id.
at 475. 75% of exit inspections took over 2
minutes, but did not specify how much longer
than 2 minutes, except that sometimes the wait
would be greater than 5 minutes. Id. at 477.
25% of exit inspections took approximately 30
seconds. Id. at 477-78. No times provided for
durations of bag checks and visual inspections.
Never waited for an exit inspection. Id. at 535.
Visual inspections took between 1-5 seconds.
Id. at 546. Bag checks took about 10 seconds.
Id. at 549.

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30% of exit inspections involved waiting. Id. at
763. Of those 30%, 15% of waits were between
0-2 minutes, 80% were 3-5 minutes, and 5%
were up to 7 minutes. Id. at 764-66. Visual
inspections took 1-2 seconds. Id. at 798. Bag
checks took 10-20 seconds. Id. at 796-97.
Jessica
Waited less than 10% of the time for an exit
6.
Chin
inspection. Id. at 242. On those occasions,
waited 2-3 minutes; the maximum time waited
was 5 minutes. Id. at 245. Bag checks took 1030 seconds. Id. at 250, 254. Bag checks took
longer on closing shifts. Id. at 246. Visual
inspections took 5-15 seconds. Id. at 259-260.
Leeann
30% of exit inspections involved waiting or
7.
Hannible
searching for manager. Id. at 656. 12% of the
exit inspections where wait required took 10-15
minutes. Id. at 659. 40% of those inspections
took 5-10 minutes. Id. 48% of those
inspections took 1-5 minutes. Id. Bag checks
took 30 seconds. Id. at 667. No information
regarding visual inspection durations.
Case No. 15-cv-03746 NC
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5.

Angelica
Leano

Left the premises
50% of the time on
rest breaks. Id. at
348. Left the
premises for lunch
100% of the time.
Id. at 358.

Left the premises
for rest breaks 49%
of the time. Id. at
463. Left the
premises for meal
breaks 40% of the
time. Id. at 464.
Never exited on
rest breaks. Id. at
532. Left for lunch
breaks 30% of the
time. Id. at 533.
Left the store for
meal and rest
breaks 50% of the
time. Id. at 757.
“Sometimes” left
the store for lunch
breaks, never left
the store for rest
breaks. Id. at 243.

Left the premises
45% of the time for
rest breaks. Id. at
650. Left 75% of
the time for meal
breaks. Id. at 651.

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8.

Stephanie
Sanchez

9.

Eric
Chavez

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United States District Court
Northern District of California

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10.

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Julian
Urvano
Martinez

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11.

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Dominic
Passanisi

Worked at two locations from June 2013 to
present. Id. at 1070. At the store she worked at
from June 2013 to December 2015, 20% of the
time, she had to look and/or wait for the
manager to conduct an exit inspection. Id. at
1077. The waits would be from under one
minute (50%) to and at most 5 (15%). Id. at
1085-88. At the second location worked, waited
for manager 5% of the time. Id. at 1083-84.
Never waited more than 3 minutes at the second
location. Id. at 1089. Bag checks took 30
seconds to a minute if others’ bags were also
checked. Id. at 1090-91. Visual inspections
took 30 seconds. Id. at 1092.
Always waited, the least amount of time an exit
inspection took was 4 minutes; maximum was
18. Dkt. No. 131-1 at 67.
98% of exit inspections involved no waiting for
the manager, other 2%, the wait lasted up to 2
minutes. Id. at 842. Visual inspections take 2
seconds. Id. at 844. Bag checks take 10
seconds. Id. at 845. Group bag checks at
closing took about 25 seconds in all. Id. at 846.
Never waited for bag checks. Id. at 949. Bag
checks took ten seconds; visual inspections took
two seconds. Id. at 952

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Searched for a manager to do exit inspection
99% of the time. Id. at 983. Waited for a
manager 85% of the time. Id. 99% of waits
were under 1 minute. Id. at 986. Waited 5
minutes or more 5% of the time. Id. at 986.
95% of the time, bag checks took 5 seconds, the
other 5% of times, the checks took 10 seconds.
Id. at 987. Later amended that a manager was
waiting at the front of the store for exit
inspections 95% of the time. Id. at 994.
Oscar
Never searched for manager to conduct an exit
13.
Salomon
inspection. Id. at 1025. 95% of exit inspections
involved no waiting, for the 5%, a 2-3 minute
wait. Id. at 1029, 1031. Bag checks took 1-10
seconds. Id. at 1035-36. Closing group bag
checks took up to a minute. Id. at 1035.
Case No. 15-cv-03746 NC
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12.

Michelle
Rodriguez

Left the premises
for rest breaks 60%
of the time at first
Converse location,
and 10% at the
second location.
Id. at 1073. At
both stores left for
meal breaks 70% of
the time. Id. at
1074.

No information
provided
Left the premises
50% of the time for
meal breaks. Id. at
830. Never left
during rest breaks.
Id.
Left the premises
for 50% of rest
breaks. Id. at 946.
Left for 90% of
meal breaks. Id. at
947.
Left the premises
during rest breaks
5% of the time. Id.
at 980. Left for
meal breaks 40% of
the time. Id.

Left premises 10%
of the time for rest
breaks. Id. at 1023.
Left 50% of the
time during meal
breaks. Id.

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5
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15
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26
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Did not wait for a manager for exit inspections
during lunches most of the time. Id. at 78. If a
wait was needed, it was because a bag check
was needed; otherwise, a visual inspection was
conducted. Id. at 85. Visual inspections took 10
seconds. Id. at 75. Bag checks took 2-30
seconds, depending on if it was a closing shift
and the manager did a group bag check. Id. at
75, 103.
Lu Hoang Never underwent a visual inspection, and though
15.
Thai Chau bag checks were conducted, never had a bag.
Id. at 211-12. Observed that bag checks took no
time. Id. at 218.
Gisella
Waited for a manager to come and perform an
16.
Corcuera
exit inspection between 25-33% of the time. Id.
at 290. When a wait was required, the wait is 1
or 2 minutes. Id. at 291. Bag checks take 10-30
seconds depending on the size and pockets of
the bag. Id. at 306. No clear answer given
regarding visual inspection durations.
David
Cannot remember waiting for an exit inspection.
17.
Allen
Id. at 412. 20% of the time had a bag check, the
Dela Cruz other 80% a visual inspection. Id. at 409.
Testified waiting a maximum of about 5 seconds
to undergo a visual inspection. Id. at 416-18.
Bag checks took about 5 seconds. Id. at 427.
Lina
33% of the time wait for a manager to come for
18.
Loretta
an exit inspection, the longest wait was 2
Gaytan
minutes. Id. at 586-87. The rest of the time,
there was no wait. Id. at 592. The longest
inspection took 3 minutes. Had a bag check
66% of the time, and those checks took 30-60
seconds. Id. at 608-09. Visual inspections took
no time. Id. at 603. If working a closing shift,
the bag check and visual inspection process for
the group of people took 2 minutes. Id. at 621.
Toni
Waited for an exit inspection 85-90% of the
19.
Navarro
time during non-closing shifts. Id. at 871.
Normally waited for an exit inspection 1-2
minutes, maximum wait was 3 minutes during
non-closing shifts. Id. at 871-72. No wait for
closing shifts, which constituted 60% of her
shifts worked. See id. at 868, 879. Bag checks
took about 30 seconds; visual inspections took a
few seconds. Id. at 872, 880. On closing shifts,
Case No. 15-cv-03746 NC
12
14.

Kristine
Bartido

Left the premises
for rest breaks 2040% of the time.
Id. at 66. Left 80%
of the time for meal
breaks. Id. at 67.

Always left the
premises for rest
and lunch breaks.
Id. at 216.
Left the premises
50% of the time for
rest breaks, and
99% of the time for
meal breaks. Id. at
284-85.
Left the premises
during rest breaks
once or twice. Id at
434.

Never left premises
for rest breaks. Id.
at 582. Left
premises for lunch
breaks 33% of the
time. Id.

Always left the
premises during
rest breaks. Id. at
867. No testimony
regarding the
frequency of exits
during meal breaks.

1
2
3
4

20.

Kiani
Palacio

21.

Leslie
Vasquez

22.

David
Villalobos

23.

Lynie
Abadilla

24.

Stephanie
Izaquirre

5
6
7
8
9
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25
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which accounted for 60% of shifts, waited
between 5-8 minutes after clocking out. Id. at
879, 886. 35% of the time closing waited less
than 5 minutes, and 65% the wait was for 5
minutes or more. Id. at 888.
Waited for exit inspections 10% of the time. Id.
at 916. If there is a wait, it is never more than 1
½ to 2 minutes. Id. At closing, security check
process is “around a minute.” Id. at 920. Visual
inspections take between 0-5 seconds. Id. at
925. Bag checks take her about 45 seconds, and
has had checks lasting 30 seconds. Id. at 919,
927.
No wait for an exit inspection 95% of time on
non-closing shifts; the 5% of the time a wait was
required, the wait was about 5 seconds. Id. at
1144-46. Visual inspections and bag checks
took a few seconds. Id. at 1157, 1159. At
closing, the exit inspection process took less
than 1 minute 75% of the time, up to 2 minutes
20% of the time, and greater than 2 minutes 5%
of the time. Id. at 1171-72.
70-80% of closing exit inspections, from
clocking out to leaving the store, took under 1
minute. Id. at 1231. The exit inspection process
rarely took greater than 2 minutes. Id. 65-70%
of exit inspections required waiting for the
manager. Id. at 1237. Bag checks took
“seconds;” group bag checks took 10-15
seconds. Id. at 1245, 1250. Visual inspections
required a slowing in pace when exiting. Id. at
1254.
Waited up to 5 seconds for an exit inspection,
but did not specify how often this happened. Id.
at 25. Bag checks take about 10 seconds. Id. at
26. Visual inspections take about 2 seconds. Id.
at 32.
Waited for a manager to conduct an exit
inspection 5% of the time; where there was a
wait, it would be about 1-2 minutes. Id. at 722,
724. Bag checks would not take more than 10
seconds. Id. at 725. Visual checks required a
slowing in pace when exiting. Id. at 730-31.

28
Case No. 15-cv-03746 NC

13

Never leaves the
premises for rest
breaks. Id. at 915.
Leaves 50% of the
time during meal
breaks. Id.

Left the premises
10% of the time
during rest and
meal breaks. Id. at
1140.

Left the premises
for rest breaks 80%
of the time, and
90% of the time for
meal breaks. Id. at
1226.

Left premises every
rest break. Id. at
17. Left for 10% of
meal breaks. Id. at
18.
“Sometimes” left
the premises for
rest breaks. Id. at
717. No
information
regarding meal
breaks.

1

As made evident by the Court’s summary, not all of the testimony is easily

2

quantifiable because both sides asked different questions to each deponent, eliciting

3

different types of responses. Class members were also often confused by questions asked

4

by both parties and changed their answers to questions. Further, class members did not

5

always quantify how long exit inspections took, even if they could provide upper or lower

6

bounds. The Court endeavored to account for the clearest final answers given.

7

b.

Analysis

First, there is a dispute between the parties regarding whether the exit inspections

9

included the time it took the employee to pack up and travel to the front of the store after

10

clocking out in the back room. See Dkt. No. 138 at 11 n.3. This time is not includable.

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United States District Court
Northern District of California

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First, allegations that this time should be included do not appear in the complaint,

12

Chavez’s motion, or Chavez’s opposition to Converse’s motion. The first time the Court

13

encountered this issue in the papers was Kriegler’s Declaration, which stated that

14

Kriegler’s understanding was that Chavez was arguing that travel time from the back to

15

front of the stores was compensable. Dkt. No. 132 at 12. This issue was not briefed, and

16

Kriegler did not account for this time in his declaration. See id. at 14-15, 44-51.

17

Second, travel time is not compensable because Converse did not place restrictions

18

on the activities of walking or packing up, which the class members would have done

19

regardless on their way out. In contrast, in Morillion v. Royal Packing Co., the plaintiffs

20

were required to ride the employer’s bus to and from the fields, and “during the bus ride

21

plaintiffs could not drop off their children at school, stop for breakfast before work, or run

22

other errands requiring the use of a car. Plaintiffs were foreclosed from numerous

23

activities in which they might otherwise engage . . . .” 22 Cal. 4th 575, 586 (2000). The

24

time riding the bus in Morillion is analogous to the time waiting for and undergoing the

25

actual visual inspections and bag checks at the front of the store. This time is potentially

26

compensable.

27

It does not make sense to compensate employees for time spent packing up and

28

walking to the exit because store employees pack up and then walk to the exit with or
Case No. 15-cv-03746 NC

14

1

without an exit inspection. Indeed, there is no indication that an employee could not use

2

the restroom, socialize, request a Lyft, or purchase merchandise before undergoing the exit

3

inspection. As far as the Court knows, Converse does not control its employees or

4

foreclose on their activities while they pack up and walk to the exit.

5

Next, the Court analyzes the evidence presented. Converse proffers the Crandall

6

Study, and that study found that the average exit inspection took between 7.2 and 11.2

7

seconds. Dkt. No. 118-3 at 25. Crandall’s findings strongly suggest the exit inspections

8

took barely a few seconds and are thus not compensable. In his deposition, Kriegler stated

9

that the average midpoint for the time an exit inspection took for each of the 12 deponents

10

United States District Court
Northern District of California

11

he considered was 114 seconds. Dkt. No. 138-1 at 25-27 (Kriegler Dep.).
The Court turns to the testimony of the 23 deposed class members and Chavez.

12

First, the exit inspection process includes any time searching or waiting for a manager to

13

conduct the inspection, as well as the duration of the actual visual inspection or bag check.

14

The class members typically testified that visual inspections took between 2 and 10

15

seconds, with Stephanie Sanchez being an outlier in testifying that visual inspections took

16

30 seconds. Dkt. No. 143 at 1092. As for bag checks, the greatest time any deponent

17

testified that an individual bag check took was 60 seconds. See id. at 609 (Gaytan Dep.).

18

Bag checks on average took between 10-30 seconds, with 60 seconds being the highest

19

testified to for an individual bag check. However, several class members never underwent

20

bag checks because they never brought a bag, and another class member testified to

21

purposefully leaving her bag at the store to avoid a bag check. Id. at 17 (Abadilla Dep.),

22

146 (Castro Dep.), 211-12 (Chau Dep.), 844 (Martinez Dep.), and 958 (Passanisi Dep.).

23

This is hardly surprising given that bag checks took longer than visual inspections.

24

In addition, neither party discussed the frequency of bag checks versus visual

25

inspections, except for Crandall’s finding that visual inspections were twice as common as

26

bag checks. Dkt. No. 118-3 at 22. As Chavez never discussed this issue, it’s obvious that

27

Crandall’s finding was not rebutted. The class member testimony regarding bag check and

28

visual inspection durations fairly correlates with the Crandall’s findings. See Dkt. No.
Case No. 15-cv-03746 NC

15

1

118-3 at 23-24.3 The Court next considers wait times.
Only Eric Chavez testified to always having to wait more than one minute for exit

2
3

inspections. Dkt. No. 131-1 at 67 (Chavez Dep.). Chavez alleges always having to wait at

4

least 4 minutes. Id. The Court considers whether there is evidence to support the named

5

plaintiff’s allegations. No other class member testified to always waiting for an exit

6

inspection. As to class members who testified to undergoing exit inspections that

7

exceeded one minute during at least half of their shifts, only Christian Escobedo testified

8

that this occurred.4 Mr. Escobedo testified that he waited over 2 minutes for 75% of his

9

exit inspections. Dkt. No. 143 at 477. The rest of the class members testified to either

10

never waiting for an exit inspection, or waiting for an inspection less than 50% of the time.
Mr. Escobedo’s testimony is insufficient to find that the amount of daily unpaid

United States District Court
Northern District of California

11
12

time is not de minimis where 22 other class members waited for exit inspections less than

13

half of the time. Lindow, 738 F.2d at 1062. Chavez has not met its burden to show that

14

there is a dispute of material fact that each exit inspection is short in duration and not

15

compensable. “[A] district court is not required to comb the record to find some reason to

16

deny a motion for summary judgment[.]” Carmen v. San Francisco Unified Sch. Dist.,

17

237 F.3d 1026, 1029 (9th Cir. 2001) (citation omitted). Chavez benefitted here because

18
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21
22
23
24
25
26
27
28

3

It appears that bag check and visual inspection durations were greater when an employee
worked a closing shift and exit inspections occurred in groups. However, not all class
members testified regarding this issue, and the parties did not brief these differences. The
Court does not have enough information to make any finding on this issue.
4
Toni Navarro testified that 85-90% of non-closing shifts involved waiting about a minute
to a minute and a half, but closing shifts required no waiting. Id. at 868, 872 (Navarro
Dep.). The Court will not consider her as a class member who waited over one minute for
exit inspections over 50% of the time because 60% of her shifts were closing shifts, which
she testified required a wait of between less than 5 and 8 minutes after clocking out. See
id. at 877, 888. However, Ms. Navarro did not testify as to how long she waited after
packing up and traveling to the bag check location, so the Court cannot tell how long she
actually waited for a bag check. Ms. Navarro testified she always left the premises during
rest breaks but provided no testimony as to the frequency of her exits during meal breaks.
Id. at 867. In addition, Ms. Navarro testified to having to wait 80% of the time for a visual
inspection during a discrete period of time, but did not specify if she was referring to
closing shift exits, non-closing shift exits, or exits during rest breaks. Id. at 881.
Unfortunately, the deposition transcript is not clear on this issue, and Chavez did not
follow-up, or even discuss Ms. Navarro’s testimony in the opposition to Converse’s
motion. The Court will not guess what Ms. Navarro meant.
Case No. 15-cv-03746 NC
16

1

the Court has gone beyond the motion papers to consider whether there is a genuine

2

dispute of material fact as to the duration of the individual exit inspections. There is not.

3

However, the Court must consider if the exit inspections in the aggregate are de minimis.

4
5

2.

The Practical Administrative Difficulty of Recording Additional Time

The first element of the Lindow test is the administrative difficulty in recording the

6

alleged unpaid work. 738 F.2d at 1062. An employer “need not prove it is ‘technically

7

infeasible’ to record the additional time; only that it would be administratively difficult to

8

do so given its timekeeping system.” Rodriguez, 2017 WL 4005591, at *14; see also

9

Corbin, 821 F.3d at 1082.

10

According to Kimberley Kiefer, the time clocks in Converse stores have never been

United States District Court
Northern District of California

11

located anywhere except at the back of the stores. Dkt. No. 138-1 at 7-8 (Kiefer Third

12

Dep.). Kiefer stated that the reasons for keeping the clocks in the “back of the house” are

13

associate privacy and convenience if they use the clocks to keep track of their time or

14

request time off. Id. at 8. In addition, Converse does not want non-consumer technology

15

on their sales floor. Id. at 9. These are legitimate business concerns, and Converse is not

16

required to change the configuration of its time clocks simply because it is feasible and

17

other retailers have their time clocks at the front of the store. Rodriguez, 2017 WL

18

4005591, at *14. Also, the effect of having employees not clock out before bag checks

19

would potentially cause the class members a delay in leaving the store because after a bag

20

check in the front of the store, an employee would have to run to the back of the store to

21

clock out.

22

As to feasibility, Kiefer testified that Converse records time by the minute, not in

23

increments of seconds. Dkt. No. 118-2 (Kiefer Dep.). However, the Court will not rely on

24

this argument, because the class member depositions suggest that exit inspections took

25

longer than one minute with some frequency. This factor favors Converse.

26
27
28

3.

The Aggregate Amount of Compensable Time

The Court next considers the size of the aggregate claim. “Courts have granted
relief for claims that might have been minimal on a daily basis but, when aggregated,
Case No. 15-cv-03746 NC

17

1

amounted to a substantial claim.” Lindow, 738 F.2d at 1063. As stated above, “[m]ost

2

courts have found daily periods of approximately 10 minutes de minimis even though

3

otherwise compensable.” Id. at 1062 (collecting cases); see also Rodriguez, 2017 WL

4

4005591, at *11.

5

The Crandall Study suggests that the aggregate amount of daily compensable time

6

would be less than one minute because each exit inspection took an average of between 7.2

7

and 11.2 seconds. Dkt. No. 118-3 at 25. This evidence is sufficient to shift the burden to

8

Chavez to show that there is a genuine dispute of material fact that the aggregate amount

9

of time is not de minimis. See Barthelemy, 897 F.2d at 1004. Taking Kriegler’s earlier
average score of 144 seconds, or 2 minutes and 24 seconds, it would take five daily exits

11

United States District Court
Northern District of California

10

by the class members to exceed the aggregate 10-minute mark. The class member

12

depositions do not suggest the exit inspections on average took any longer than Kriegler

13

suggests, and there is even less support for the idea that class members exited the premises

14

five times during their shifts.

15

Neither party briefed the issue of how often class members exit the premises during

16

rest and meal breaks. This issue should be examined for the Court to determine whether

17

aggregate exit inspection durations were de minimis. See Lindow, 738 F.2d at 1062.

18

Based on the depositions, the maximum number of times a class member working a full-

19

time shift would have exited in one day is four times. This is because a class member may

20

exit the store during their two rest breaks, meal break, and at the end of their shift.

21

Employees working part-time shifts would exit twice, during a rest break and at the end of

22

their shift.

23

Lu Hoang Thai Chau testified that he left the store 100% of the time during rest and

24

meal breaks. Dkt. No. 143 at 216. Toni Navarro and Lynie Abadilla testified they left the

25

premises during rest breaks 100% of the time. Id. at 17, 867. Matthew Cornejo left the

26

premises during meal breaks 100% of the time. Id. at 358. The remainder of the deposed

27

class members left their stores somewhere between never and 99% of the time for rest and

28

meal breaks. Most class members did not leave the premises every time they were given
Case No. 15-cv-03746 NC

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1

the opportunity to, and so did not undergo as many exit inspections daily as they could

2

have. For purposes of this motion, these findings mean there is no evidence that the class

3

member’s aggregate time, even considering Kriegler’s greater exit inspection time of 144

4

seconds would have crossed the 10-minute threshold daily. The class members simply did

5

not exit often enough to have to go through five exit inspections daily. Lindow, 738 F.2d

6

at 1062 (collecting cases); see also Rodriguez, 2017 WL 4005591, at *11. This element

7

weighs in favor of Converse.

8
9

4.

The Regularity of the Additional Work

The last element the Court must consider under Lindow is the regularity of the
additional work. 738 F.2d at 1063. Chavez argues that the class members regularly

11

United States District Court
Northern District of California

10

performed additional work because they always had to undergo exit inspections when they

12

left the store. Dkt. No. 131 at 29. True as this may be, it does not speak to whether the

13

class members regularly performed compensable work. The Court finds sound Judge

14

Freeman’s conclusion that what needs to be considered at this prong in the Lindow test is

15

the regularity of compensable work. Rodriguez, 2017 WL 4005591, at *17 (citing Lindow,

16

738 F.2d at 1063-64 and Corbin, 821 F.3d at 1082). Under the circumstances,

17

compensable work means work that exceeded one minute in length, as Converse’s

18

timekeeping system does not record time in second intervals.

19

The Court first notes that it found in its order certifying the class that the exit

20

inspections occurred off the clock because the time clocks are located in the back of the

21

store and the exit inspections occur at the front exit. Dkt. No. 89 at 3. The Crandall Study

22

found that 95.9% of exit inspections took one minute or less, see dkt. no. 118-3 at 20, and

23

99.5% of exit inspections had a wait time of 2 minutes or less. See id. The average time to

24

complete an exit inspection was 7.2 to 11.2 seconds. Id. at 25. These findings are

25

significant because Converse’s timekeeping system cannot measure time in less than 1

26

minute increments. Dkt. No. 118-2 (Kiefer Dep.). Crandall’s findings suggest that the

27

overwhelming majority—95.4%—of exit inspections would not have been measurable

28

because they lasted less than one minute. The Court now considers Chavez’s evidence.
Case No. 15-cv-03746 NC

19

1

Construing the facts in the light most favorable to Chavez, he has at most

2

established that the exit inspections took anywhere from the 2 seconds Dominic Passanisi’s

3

exit inspections lasted to the 18 minutes Chavez alleges to have waited at least once. Dkt.

4

No. 143 at 949; Dkt. No. 131-1 at 67. Kriegler’s Declaration does not discuss the

5

regularity of compensable exit inspections, so the Court considers the deposition testimony

6

of the class members. Only Eric Chavez testified to always having to wait for an exit

7

inspection for one minute or more. Dkt. No. 131-1 at 67. Toni Navarro testified that she

8

waited for an exit inspection 1-2 minutes 85-90% of the time during non-closing shifts. Id.

9

at 871-72. Christian Escobedo testified to waiting 2 minutes or more 75% of the time. Id.
at 475. Thus, 3 out of 24 class member arguably testified that their exit inspection took

11

United States District Court
Northern District of California

10

greater than one minute with regularity. This testimony is insufficient to rebut the

12

Crandall Study’s finding that the overwhelming majority of exit inspections took less than

13

one minute, especially where 21 other class members did not experience compensable exit

14

inspections with any regularity. On balance, this element weighs in favor of Converse.

15

Converse has satisfied the elements of Lindow, and the Court finds that as a matter

16

of law, the exit inspections were de minimis. Because Converse satisfies the Lindow test,

17

all of the claims in the complaint must be dismissed. The Court thus DENIES AS MOOT

18

Chavez’s motion for partial summary judgment.

19

IV. CONCLUSION

20

For the reasons stated above, the Court GRANTS Converse’s motion for summary

21

judgment, and DENIES AS MOOT Chavez’s motion for partial summary judgment. The

22

Court will enter judgment accordingly.

23
24

IT IS SO ORDERED.

25
26

Dated: October 11, 2017

27

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

28
Case No. 15-cv-03746 NC

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