Balderrama-Baca et al v. Clarence Davids and Company
Filing
160
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/6/19.Mailed notice(ca, )
Case: 1:15-cv-05873 Document #: 160 Filed: 03/06/19 Page 1 of 16 PageID #:1444
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAMIRO BALDERRAMA-BACA a/k/a
ROMAN BALDERRAMA-BACA,
SALVADOR MATEOS SR., AND PEDRO
ESCUTIA, et al., on behalf of
themselves, and all other similarly
situated plaintiffs known or unknown,
Plaintiffs,
v.
CLARENCE DAVIDS AND COMPANY,
Defendant.
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15 C 5873
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs, who are current or former employees of Clarence Davids and
Company (“Clarence Davids”), have brought this lawsuit alleging that Clarence
Davids required them to work off the clock without pay in violation of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq., and the Illinois Minimum Wage Law, 820 Ill.
Comp. Stat. 105/1 et seq. Plaintiffs also allege that Clarence Davids covered the cost
of employees’ uniforms by taking payroll deductions without authorization in
violation of the Illinois Wage Payment and Collection Act (“IWPCA”), 820 Ill. Comp.
Stat. 115/1 et seq.
The Court previously certified a class and three subclasses with respect to the
IWPCA claim. Now, Plaintiffs and Clarence Davids have filed cross-motions for
summary judgment as to liability on Plaintiffs’ IWPCA claim. For the reasons stated
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herein, Plaintiffs’ motion [142] is granted in part and denied in part, and Clarence
Davids’s motion [138] is granted in part and denied in part.
Factual Background1
Plaintiffs are current or former employees who worked for Clarence Davids
between 2005 and 2016. See Mem. Op. & Order at 21, ECF No. 64. Clarence Davids
is a landscaping company that has over 200 employees in the Chicago area. Def.’s LR
56.1 Stmt. (“Def.’s SOF”) ¶ 1, ECF No. 140.
Clarence Davids requires its landscaping employees to wear uniforms
consisting of pants, a long-sleeve shirt, and a hat. Id. ¶¶ 3–4; Pls.’ LR 56.1 Stmt.
(“Pls.’ SOF”) ¶ 11, ECF No. 144. The uniforms feature a company logo on the breast
area of the shirt and on the hat. Pls.’ SOF ¶¶ 9, 11. Clarence Davids states that the
uniforms also feature “reflective caution stripes to protect employees working along
the road.” Def.’s SOF ¶ 4. Plaintiffs dispute whether these stripes are necessary for
safety purposes and how long the uniforms have had the stripes. Pls.’ LR 56.1(b)
Resp. ¶¶ 3–4, ECF No. 152.
Before 2009, Clarence Davids provided uniforms to employees free of charge.
Def.’s SOF ¶ 5. From 2009 through 2012, Clarence Davids required employees to
purchase their uniforms, and deducted the cost from their paychecks.2 Id. ¶ 6; Def.’s
The following facts are undisputed or have been deemed admitted, except where
otherwise noted.
1
New employees were charged for uniforms starting in 2009. Def.’s SOF ¶ 6. Returning
employees were not charged in 2009; instead, starting in 2009, returning employees were
charged for uniforms every two years. Id. ¶ 7.
2
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LR 56.1(b) Stmt. Add’l Facts (“Def.’s SOAF”) ¶ 3, ECF No. 149. These employees did
not sign forms authorizing the deductions, although they did sign notes stating that
they had received the uniforms. Def.’s SOAF ¶ 3.
In 2013, Clarence Davids replaced its uniform-purchase policy with a uniformrental policy and began charging employees $14.00 every two weeks, via payroll
deduction, for uniform rentals. Def.’s SOF ¶¶ 8–9. That year, employees signed a
form that Clarence Davids contends authorized the payroll deductions. Id. ¶ 11; Pls.’
LR 56.1(b) Resp. ¶ 11.
In 2014, only new employees were asked to sign the form. Pls.’ LR 56.1(b)
Resp. ¶ 12. And, beginning in 2015, all employees were required to sign the form on
an annual basis. Id. ¶ 13. The uniforms were mandatory, and the employees were
not able to opt out of the payroll deductions. Def.’s SOF ¶ 10.
Ramiro (“Ramon”) Balderrama-Baca worked for Clarence Davids from 2009 to
2014; he paid for his uniforms under the 2009–2012 policy but never rented uniforms.
Def.’s SOF ¶¶ 21–22. Pedro Escutia began working for Clarence Davids in 2010 or
2011 and is still employed there; rental fees were deducted from his paychecks. Id.
¶¶ 18–20. Benjamin Zinzun-Ortiz was also subject to the uniform-rental policy. Id.
¶ 26. Salvador Marquez worked for Clarence Davids from 1976 to 2017; the uniform
cost was deducted from his paychecks. Id. ¶¶ 23–24. Carlos Acuna worked for
Clarence Davids from 1995 to 2015; he was also subject to payroll deductions for
uniforms. Id. ¶ 17. Each employee received the uniforms for which he paid. Def.’s
SOF ¶¶ 16, 20, 22, 24, 26.
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Plaintiffs filed this lawsuit in July 2015, and in March 2017, the Court certified
three subclasses with respect to the IWPCA claim:
Subclass I: 2005–2010 Landscaping Seasons: All employees who work
or worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members, and who experienced one or
more deductions from pay for uniform costs, from July 2, 2005 through
the end of the 2010 landscaping season.
Subclass II: 2011–2012 Landscaping Seasons: All employees who work
or worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members, and who experienced one or
more deductions from pay for uniform costs, in the 2011 and 2012
landscaping seasons.
Subclass III: 2013–2016 Landscaping Seasons: All employees who work
or worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members, from the 2013 landscaping
season through the end of the 2016 landscaping season.
Mem. Op. & Order at 21. The parties’ cross-motions for summary judgment as to
liability for Plaintiffs’ IWPCA claim are now before the Court.
Legal Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Shell v. Smith, 789 F.3d 715, 717 (7th
Cir. 2015). To survive summary judgment, the nonmoving party must “do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and
instead must “establish some genuine issue for trial such that a reasonable jury could
return a verdict in her favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73
(7th Cir. 2012). The evidence considered for summary judgment “must be admissible
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if offered at trial, except that affidavits, depositions, and other written forms of
testimony can substitute for live testimony.” Malin v. Hospira, Inc., 762 F.3d 552,
554–55 (7th Cir. 2014). The Court gives the nonmoving party “the benefit of conflicts
in the evidence and reasonable inferences that could be drawn from it.” Grochocinski
v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013).
Moreover, Rule 56 “requires the district court to grant a motion for summary
judgment after discovery ‘against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” Silverman v. Bd. of Educ. of City of Chi.,
637 F.3d 729, 743 (7th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)), overruled on other grounds by Ortiz v. Werner Enters., 834 F.3d 760 (7th Cir.
2016). The moving party has the initial burden of establishing that there is no
genuine issue of material fact. See Celotex, 477 U.S. at 322. Once the moving party
has sufficiently demonstrated the absence of a genuine issue of material fact, the
nonmoving party must then set forth specific facts showing there are disputed
material facts that must be decided at trial. See id. at 321–22.
Analysis
Clarence Davids argues as a threshold matter that Plaintiffs lack standing to
prosecute this action. Alternatively, it contends that its payroll practices satisfied
the IWPCA, because the uniforms were for the benefit of its employees, and Clarence
Davids deducted the costs from an employee’s pay with his or her consent.
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I.
Standing
To have Article III standing to sustain a lawsuit in federal court, a plaintiff
must, inter alia, suffer an “injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotations and citations omitted). “Article III standing requires a concrete injury
even in the context of a statutory violation.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1549 (2016); see Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 911 (7th Cir. 2017)
(applying Spokeo). Absent standing, a federal court lacks subject matter jurisdiction
over a case. See, e.g., Gubala, 846 F.3d at 911.
The party invoking federal jurisdiction always bears the burden of establishing
the elements of standing. Lujan, 504 U.S. at 561; Hummel v. St. Joseph Cty. Bd. of
Com’rs, 817 F.3d 1010, 1015–16 (7th Cir. 2016).
The invoking party’s burden
increases as the case proceeds through the stages of litigation. “At the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may
suffice.” Lujan, 504 U.S. at 561. “In response to a summary judgment motion,
however, the plaintiff can no longer rest on such mere allegations, but must set forth
by affidavit or other evidence specific facts, which for purposes of the summary
judgment motion will be taken to be true.” Id. (internal quotation marks and citations
omitted); see id. at 567 n.3 (citing Celotex, 477 U.S. at 322).
As an initial matter, it is undisputed that, prior to the 2009 landscaping
season, Clarence Davids took no payroll deductions for the cost of uniforms.
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Accordingly, a portion of the class members in Subclass I—those who did not work
for Clarence Davids past the end of the 2008 landscaping season—have not suffered
any injury-in-fact.
Clarence Davids argues, however, that even the class members who did receive
deductions lack standing. Clarence Davids points to two facts: (1) the uniforms were,
and continue to be, mandatory; and (2) no Plaintiff argues that he did not receive the
uniforms for which he paid. According to Clarence Davids, this demonstrates that
the class members suffered no “concrete” injury because they would have had to pay
for the uniforms one way or another. See Spokeo, 136 S. Ct. at 1548. Clarence Davids
goes on to argue that, even if its challenged practices had violated the IWPCA, they
were merely “bare procedural violation[s], divorced from any concrete harm.” See id.
at 1549.
Clarence Davids’s loose reading of Spokeo misses the mark. Spokeo did not
hold that “procedural” violations could never confer standing. See id. at 1549–50.3
Rather, it recognized that procedural violations may be sufficiently concrete for
standing purposes if they implicate the substantive risks that the legislature sought
to curb in adopting the statute. See id.; Rivera v. Allstate Ins. Co., 913 F.3d 603, 615
(7th Cir. 2019). Accordingly, “standing questions . . . sometimes require [the court]
to identify the particular interest [the legislature] sought to protect and to determine
if the plaintiff has suffered a concrete injury to that interest.” Rivera, 913 F.3d at
In fact, the Supreme Court did not even hold that the procedural violation in Spokeo
was insufficiently concrete to confer standing; it remanded to the Ninth Circuit to consider
the question. See 136 S. Ct. at 1550 & n.8.
3
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615.
Here, the IWPCA is concerned with unauthorized or unwarranted payroll
deductions. See 820 Ill. Comp. Stat. 115/9. That is precisely what Plaintiffs in this
case allege occurred; the unjustified paycheck deductions they allege are the sine qua
non of a claim under the IWPCA. See Kavanagh v. KLM Royal Dutch Airlines, 556
F. Supp. 242, 245 (N.D. Ill. 1983).
In contrast, the cases cited by Clarence Davids all involved technical violations
that bore little relation to the substantive rights at issue. For instance, in Meyers v.
Nicolet Restaurant of De Pere, LLC, the Seventh Circuit concluded that the printing
of a customer’s credit-card expiration date on a receipt was not a concrete injury
under the Fair and Accurate Credit Transactions Act (“FACTA”), because “failure to
truncate a card’s expiration date, without more, does not heighten the risk of identity
theft.” 843 F.3d 724, 727–28 (7th Cir. 2016). Similarly, in Aguilar v. Rexnord LLC,
the court held that an employer’s failure to obtain a signed release or explain its
fingerprint policy to the plaintiff was insufficient to confer standing under the Illinois
Biometric Information Privacy Act (“IBIPA”). No. 17 CV 9019, 2018 WL 3239715, at
*2 (N.D. Ill. July 3, 2018). The court concluded that violations of the IBIPA’s notice
and consent provisions did not create an “appreciable risk of harm to Aguilar’s right
to privacy in his fingerprints”—the “core interest” the legislature sought to protect—
because Aguilar’s fingerprints were not obtained or disclosed without his consent.
See id. at *2–3; see also Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 888–89
(7th Cir. 2017) (plaintiff lacked standing to challenge a “non-compliant” disclosure
under the Fair Credit Reporting Act because it did not implicate Congress’s concern
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with job applicants’ unknowing consent to allowing a prospective employer to procure
a credit report); Vega v. Mid Am. Taping & Reeling, Inc., No. 1:16-cv-08158, 2018 WL
2933676, at *4 (N.D. Ill. June 12, 2018) (plaintiffs lacked standing to challenge a
standalone “misclassification” as independent contractors where nothing suggested
that “Congress was ever concerned about standalone misclassifications that do not
result in any financial or employment harm”).
The fact that Plaintiffs may have had to pay for uniforms anyway and received
what they paid for does not change this analysis.4 Instead, it goes to the issue of
damages and what Plaintiffs may be entitled to recover under the IWPCA. That is
an issue of merits, not standing. See Abbott v. Lockheed Martin Corp., 725 F.3d 803,
808 (7th Cir. 2013) (“Injury-in-fact for standing purposes is not the same thing as the
ultimate measure of recovery. The fact that a plaintiff may have difficulty proving
damages does not mean that he cannot have been harmed.”).
Accordingly, the Court enters summary judgment in Clarence Davids’s favor
with respect to the portion of the employees in Subclass I who did not work for
Clarence Davids after the end of the 2008 landscaping season. In all other respects,
the Court denies Clarence Davids’s motion for summary judgment on lack of standing
grounds.
It is worth noting that the undisputed evidence shows that Clarence Davids covered
the cost of uniforms prior to 2009, suggesting that the employees’ purchase of the uniforms
was not the only option available. See Def.’s SOF ¶ 5.
4
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II.
Deductions Made for the Employees’ Benefit
The IWPCA prohibits deductions from wages or final compensation unless
(1) required by law; (2) made “to the benefit of the employee”; (3) made in response to
a valid wage assignment or wage deduction order; (4) made with the “express written
consent of the employee, given freely at the time the deduction is made,” or (5) made
by certain government entities. 820 Ill. Comp. Stat. 115/9. Clarence Davids argues
that, because its uniform deductions were “to the benefit of” its employees in a
number of ways, it was not required to obtain its employees’ consent.
First, Clarence Davids contends that the uniforms included such features as
long pants and “reflective caution stripes,” Def.’s SOF ¶ 4, and thus the uniform
deductions benefited the employees by promoting safety.
Second, because its
uniforms were mandatory, Clarence Davids claims that the payroll deductions
benefited the employees by eliminating the need for them to pay for the uniforms in
some other way. In support, it points to Bell v. Bimbo Foods Bakeries Distribution,
Inc., where the court concluded that such convenience did constitute a “benefit to the
employee” under the IWPCA. No. 11 C 03343, 2013 WL 6253450, at *4 (N.D. Ill. Dec.
3, 2013).
Plaintiffs vigorously dispute the safety benefits of the uniforms, arguing that
deposition testimony establishes that employees could have worn their own pants and
shirts, and that there was no legitimate need for the so-called caution stripes.
Plaintiffs also contend that the IWPCA does not recognize “convenience” as a
legitimate benefit, citing Torres v. Nation One Landscaping, Inc., No. 12 CV 9723,
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2016 WL 7049048, at *5 (N.D. Ill. Dec. 5, 2016) (rejecting administrative convenience
as a benefit under the IWPCA where employer had not “subsidized the cost of the
[uniform] rentals or . . . received a discounted rate for the group, which it shared with
the employees”).
Quite apart from these cases, however, the Illinois Department of Labor
(“IDOL”)—the state agency charged with enforcing and promulgating regulations
under the IWPCA, see Arrez v. Kelly Servs., Inc., 522 F. Supp. 2d 997, 1006 (N.D. Ill.
2007)—has issued a specific regulation addressing the very question in dispute:
An employer shall not deduct the cost of purchasing and/or cleaning
uniforms required by the employer from an employee’s wages or final
compensation, unless the employee’s express written consent is given
freely at the time the deduction is made. Distinctive outfits or
accessories, or both, intended to identify the employee with a specific
employer shall be considered a uniform. . . .
56 Ill. Admin. Code § 300.840. This regulation unequivocally mandates that, where
an employer requires its employees to wear a uniform intended to identify the
employee with the particular employer, the employer must obtain the employee’s
express written consent before deducting the cost of the uniform from his or her
wages.
The question, then, is whether the uniforms worn by Plaintiffs and required
by Clarence Davids were “intended to identify the employee with a specific employer,”
thereby subjecting Clarence Davids to the requirements of § 300.840. As to this issue,
there is no dispute. Clarence Davids admits that its uniforms have a logo on the
breast area of the shirt as well as on the hat. Def.’s LR 56.1(b) Resp. ¶¶ 9, 11, ECF
No. 149.
Additionally, Clarence Davids’s corporate witness agreed that it is
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“important to the Company to be able to identify their employees to the customers”
and that the uniforms “identified landscaping laborers as Clarence Davids
employees.” Id. ¶¶ 10, 12.
Clarence Davids’s argument rests on the proposition that uniforms can serve
multiple purposes, and just because a uniform might identify an employee with an
employer, it does not mean that the uniform cannot also benefit the employee within
the meaning of the IWPCA. But such an argument is contrary to the plain language
of § 300.840, which requires express written consent so long as a uniform is intended
to perform an identifying function. In other words, in the considered judgment of the
IDOL, a uniform that identifies an employee with an employer always triggers an
employer’s obligation to obtain express written consent before deducting the cost of
the uniform from an employee’s pay, even though the uniform might provide some
added benefit to the employee.5 Clarence Davids does not argue that § 300.840
exceeds the rulemaking authority of the IDOL, and the Illinois Supreme Court has
held that the agency’s interpretation of the IWPCA “constitutes an informed source
for guidance when seeking to ascertain the legislature’s intention when the statute
was enacted.” Andrews v. Kowa Printing Corp., 838 N.E.2d 894 (Ill. 2005); see also
Watts v. ADDO Mgmt., LLC, 97 N.E.3d 75, 81 (Ill. App. Ct. 2018) (turning to IDOL
This is not an isolated instance. The IDOL has enacted similar provisions with respect
to deductions for other mandatory items that could potentially benefit employees. See, e.g.,
56 Ill. Adm. Code §§ 300.780 (required training and educational expenses); 300.850 (required
equipment).
5
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regulations to construe an undefined term in the IWPCA); McLaughlin v. Sternberg
Lanterns, Inc., 917 N.E.2d 1065, 1071 (Ill. App. Ct. 2009) (same).
III.
Deductions Made with Written Consent
Under both the IWPCA and § 300.840, therefore, Clarence Davids could deduct
the cost of its required uniforms only with the “express written consent of the
employee, given freely at the time the deduction is made.” 820 Ill. Comp. Stat.
115/9(4); 56 Ill. Admin. Code § 300.840. Another regulation, 56 Ill. Admin. Code
§ 300.720(b), provides that consent for ongoing deductions may be considered “freely
given” only if the “written agreement provides for [the] period of time [that deductions
will occur], provides for the same amount of deduction each period[,] and allows for
voluntary withdrawal for the deduction.”
Plaintiffs contend that none of the
authorization forms they signed were “freely given” as none allowed for voluntary
withdrawal of the deductions.
A.
Deductions Taken Before 2013
As an initial matter, it is undisputed that no employees signed authorization
forms prior to the 2013 landscaping season. See Def.’s LR 56.1(b) Resp. ¶ 8; Def.’s
SOF ¶¶ 11–13. Accordingly, pursuant to the IWPCA and § 300.840, Plaintiffs in
Subclasses I (to the extent that they worked in 2009 or later) and II are entitled to
summary judgment.
B.
Deductions Taken from 2013 to 2016
As for deductions taken after 2013, Clarence Davids contends that its failure
to notify employees of their right to opt out of deductions is merely technical, because
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the uniforms were mandatory and Plaintiffs would have had to pay for them anyway.
Additionally, it argues, there is no evidence that Clarence Davids would not have
allowed Plaintiffs to opt out of the deductions upon request.
First, nowhere within its provisions does the IWPCA exempt “technical”
violations of the statute. Second, Clarence Davids admits that “[e]mployees who were
required to wear uniforms were not given the option to opt out of the uniform rental
deduction because the uniforms were mandatory.”
Def.’s SOF ¶ 10.
The only
reasonable conclusion from this statement is that Clarence Davids did not allow
Plaintiffs to opt out of the deductions. Whether it would have done so is immaterial.
Accordingly, the Court concludes that Clarence Davids’s authorization forms
violated the IWPCA and § 300.720(b), and Plaintiffs in Subclass III are entitled to
summary judgment.6
Amended Subclass Definitions
When certifying the class, the Court noted that certification could be revisited
“if the creation of subclasses prove[d] unmanageable or problematic after the Court’s
original certification decision.” Mem. Op. & Order at 13. Contrary to the facts in the
record at the class-certification stage, the undisputed evidence now shows that
Clarence Davids had the following payroll deduction policies: (1) no uniform
deductions prior to 2009, (2) deductions made without authorization forms from 2009
to 2012, and (3) deductions made with faulty authorization forms from 2013 to 2016.
Because the Court concludes that none of Clarence Davids’s authorization forms
complied with Illinois law, the Court does not address Plaintiffs’ alternative arguments
regarding the timing of the authorization forms in relation to when deductions were taken.
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Accordingly, the Court’s decision to grant summary judgment to Clarence Davids
regarding the pre-2009 no-deduction policy effectively splits Subclass I, which
currently covers employees who worked both before 2009 and from 2009 to 2010.
Additionally, the Court’s summary-judgment decision regarding Clarence Davids’s
policy from 2009 to 2012 covers the latter portion of Subclass I as well as all of
Subclass II.
As a result, based upon the record before it, the Court proposes the following
amended subclass definitions:
Subclass I: 2005-2008 Landscaping Seasons: All employees who work or
worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members from July 2, 2005 through the
end of the 2008 landscaping season.
Subclass II: 2009-2012 Landscaping Seasons: All employees who work
or worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members, and who experienced on or
more deductions from pay for uniform costs, from the 2009 landscaping
season through the end of the 2012 landscaping season.
Subclass III: 2013–2016 Landscaping Seasons: All employees who work
or worked for Clarence Davids and Company as maintenance crew
members and/or landscape crew members, from the 2013 landscaping
season through the end of the 2016 landscaping season.
Under the amended subclass definitions, summary judgment would be entered
in favor of Clarence Davids as to Amended Subclass I, and in favor of Plaintiffs as to
Amended Subclasses II and III. To the extent that either party objects to this
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amendment, any objection should be filed within twenty-one days.7 A status hearing
is set for 5/2/19 at 9:00 a.m.
Conclusion
For the reasons stated herein, Plaintiffs’ motion for partial summary judgment
as to liability [142] is granted in part and denied in part, and Clarence Davids’s
motion for partial summary judgment as to liability [138] is granted in part and
denied in part.
To the extent that either party objects to the Court’s proposed
subclass amendment, any objection should be filed within twenty-one days. A status
hearing is set for 5/2/19 at 9:00 a.m.
IT IS SO ORDERED.
ENTERED 3/6/19
__________________________________
John Z. Lee
United States District Judge
The parties should limit any objections to the amended subclass definitions and not
reargue the motion for class certification already decided by the Court. Any objections to
class certification previously raised by Defendant in its original brief are preserved.
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