Giles v. St. Charles Health System, Inc.
Filing
53
OPINION and ORDER: Granting Plaintiffs' Motion for Class Certification 35 . The parties' requests for oral argument are denied as unnecessary. Signed on 10/22/2013 by Chief Judge Ann L. Aiken. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CAROL LYNN GILES, individually
and on behalf of all other
persons similarly situated;
SHAWN H. DUNLAP, an individual;
CHERYL LEE FISCHER, an
individual; MELODIN CORNIS, an
individual; and MARY ANN ADLER,
an individual,
Case No.
6:13-cv-00019-AA
OPINION AND ORDER
Plaintiffs,
v.
ST. CHARLES HEALTH SYSTEM, INC.,
an Oregon corporation, doing
business as PIONEER MEMORIAL
HOSPITAL, ST. CHARLES MEDICAL
CENTER - BEND, ST. CHARLES
MEDICAL CENTER - REDMOND, and
ST. CHARLES - MADRAS,
Defendant.
),
Roxanne L. Farra
Roxanne L. Farra, P.C.
17 N.W. Irving Avenue
Bend, Oregon 97701
Attorney for plaintiffs
Page 1 - OPINION AND ORDER
Brenda K. Baumgart
John Baird Dudrey
Stoel Rives L.L.P.
900 SW Fifth Avenue, Suite 2600
Portland, Oregon 97204
Attorneys for defendant
AIKEN, Chief Judge:
Plaintiffs Carol Giles, Shawn Dunlap, Cheryl Fischer, Melodin
Cornis, and Mary Ann Adler move for class certification pursuant to
Fed.
R.
Civ.
P.
23.
opposes plaintiffs'
Defendant St.
motion.
Charles Health System,
For the
reasons
set
Inc.
forth below,
plaintiffs' motion is granted.
BACKGROUND
Plaintiffs are employed as registered nurses at defendant's
hospitals.
employees
Defendant requires its hourly nurses and certain other
(collectively
"caregivers")
to
fulfill
training
and
certification requirements, which are not necessary to maintain an
Oregon nursing license, as a condition of employment.
In November
2010, Ms. Giles informed hospital management that it was unlawful
not to compensate employees for this study and test-taking time.
On December 2, 2011, Ms. Giles filed a small claims action against
defendant.
On December 28, 2011, defendant agreed, in writing, to
begin drafting a policy pertaining to compensation for study and
test-taking time,
tests;
in
and to pay for Ms.
exchange,
Ms.
Giles
Giles'
dismissed
2011 certification
her
complaint
without
prejudice.
Ms.
Giles
remained
Page 2 - OPINION AND ORDER
in
contact
with
hospital
management
regarding defendant's payment practices between February 2012 and
December 2012.
On December 5, 2012, Ms. Giles notified defendant
that she consulted a labor lawyer regarding these practices.
On
December 28, 2012, defendant issued a memorandum, entitled "Study
and Test Taking Time," proposing to pay caregivers for their unpaid
training time since January 1, 2011, "based on the two-year statute
of limitations for overtime and premium pay actions in Oregon."
Giles
Decl.
Ex.
A
("Policy") .
As a
condition of payment,
the
caregiver was required to sign a "Study and Test Taking Time Release Form," in which he or she stipulates to "hav[ing] been paid
for
hours
all
spent
studying
and
certifications" and to "release all claims
Health
System
Additionally,
in
that
regard."
caregivers
were
Id.
given
at
the
taking
tests
against St.
Ex.
C
option
for
Charles
("Release") .
to
meet
with
defendant's human resources staff to discuss the new policy.
On January 4, 2013, Ms. Giles filed a putative class action in
this
Court,
alleging
that
defendant
Standards Act and Oregon's labor laws.
Giles
moved
for
an
order
violated
the
Fair
Labor
On February 22, 2013, Ms.
requiring
defendant
to
cease
communications with potential class members regarding this lawsuit,
the Policy, or the Release of any potential claims; she also moved
to produce any documents obtained from putative class members.
Thereafter, Ms. Dunlap and Ms. Fischer joined this lawsuit as named
plaintiffs.
On May 9, 2013, this Court denied Ms. Giles' discovery
Page 3 - OPINION AND ORDER
request
but
otherwise
granted her motion
to
communications with putative class members.
plaintiffs
moved
for
class
certification;
limit
defendant's
On June 18,
the
proposed
2013,
class
includes "[a]ll present and former hourly nurses and respiratory
therapists who were employed by Defendant in Oregon and studied
for,
trained for,
obtained,
or renewed a BLS, ACLS,
PALS,
ENPC,
NRP, TNCC, TEAM or S.T.A.B.L.E. certification between December 12,
2008 ([three] years preceding December 12, 2011) and the present."
Compl.
~
23.
Thereafter, Melodin Cornis and Mary Ann Adler joined
this lawsuit as plaintiffs.
STANDARD OF REVIEW
"Class certification is proper if plaintiffs show that they
meet the requirements of Fed. R. Civ. P. 23(a) and also come within
one
of
the
Interstate
provisions
Bank,
N.A.,
of
23 (b) . "
97
F.R.D.
Wilcox
440,
443
Dev.
(D.Or.
Co.
v.
First
1983).
The
plaintiff bears the burden of establishing compliance with Fed. R.
Civ. P. 23.
1186
(9th
See Zinser v. Accufix Research Inst., 253 F.3d 1180,
Cir.
2001)).
Nonetheless,
" [a]
class
may
only
be
certified if [the court] is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied."
v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)
and internal quotations omitted) .
Hanon
(citations
As such, "district courts [have]
broad discretion to determine whether a class should be certified,
and
to
revisit
that
Page 4 - OPINION AND ORDER
certification
throughout
the
legal
proceedings."
Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir.
2001),
denied,
cert.
537
U.S.
812
(2002),
abrogated
on
other
grounds, Johnson v. California, 543 U.S. 499, 504-05 (2005).
Under Fed. R. Civ. P. 23(a), the plaintiff must demonstrate
that:
(1) the class is so numerous that joinder of all members
is impracticable; (2) there are questions of law or fact
common to the class; ( 3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a).
Under Fed. R. Civ. P. 23(b), the plaintiff
must also prove, in relevant part, that "questions of law or fact
common to class members predominate over any questions affecting
only individual members,
and that a class action is superior to
other available methods for fairly and efficiently adjudicating the
controversy."
Fed. R. Civ. P. 23 (b) (3).
DISCUSSION
Defendant contends that plaintiffs' motion should be denied.
Defendant first argues that Ms.
Giles is not an adequate class
representative because she did not execute a Release and her claims
are "subject to a unique defense" pursuant to Or.
12.220. 1
Rev.
Stat.
§
Def.'s Resp. to Mot. Class Cert. 7. Defendant also argues
1
The Court notes that potential defenses are ordinarily
considered when evaluating whether the plaintiff's claims are
typical of the proposed class.
Compare Capps v. U.S. Bank Nat'l
Ass'n, 2009 WL 5149135, *5 (D.Or. Dec. 28, 2009) (discussing the
adequacy requirement), with Hanan, 976 F.2d at 508 (discussing
Page 5 - OPINION AND ORDER
that Ms.
Giles'
claims are not typical of caregivers who signed
Releases or former registered nurses. 2
Lastly, defendant asserts
that plaintiffs cannot satisfy Fed. R. Civ. P. 23(b) because "the
putative class'
claims can only be resolved with individualized
damages inquiries."
Id. at 12-13 (citing Comcast Corp. v. Behrend,
133 S.Ct. 1426, 1433 (2013)).
I.
Numerosity
Under Fed. R. Civ.
P. 23(a), the proposed class must be "so
numerous that joinder of all members is impracticable."
Civ. P. 23(a) (1).
Fed. R.
The size of a potential class is a key factor in
assessing numerosity because "where a class is large in numbers,
joinder will usually be impracticable."
Jordan v. L.A. Cnty., 669
F.2d 1311, 1319 (9th Cir.), vacated on other grounds, 459 U.S. 810
(1982).
"[A]s a rough rule of thumb, approximately forty members
is sufficient to satisfy the numerosity requirement."
Wilcox,
97
F.R.D. at 443 (citation and internal quotations omitted); see also
the typicality requirement) .
2
Defendant additionally contends that Ms. Giles' "claims are
not typical of St. Charles' caregivers who are not registered
nurses or respiratory therapists but who completed study or testtaking time"; it therefore requests that Ms. Giles be limited to
"representing the St. Charles employees who completed one of the
eight courses she identified in her complaint." Def.'s Resp. to
Mot. Class Cert. 9, 12. According to plaintiffs, "[i]t was
always [their] intent to limit the class definition to current
and former caregivers of Defendant who completed one of the eight
(8) courses" outlined in the complaint.
Pls.' Reply to Mot.
Class Cert. 9.
Because the parties are in agreement as to this
issue, the Court need not address it further.
Page 6 - OPINION AND ORDER
Or. Laborers-Emp'rs Health & Welfare Trust Fund v. Philip Morris,
188 F.R.D. 365, 372-73 (D.Or. 1998).
Defendant does not dispute that the numerosity requirement is
In fact,
met in the case at bar.
defendant admits that it "met
with approximately 500 caregivers regarding their study and testtaking time .
. 450
taking
Defs.'
time."
[of which]
Resp.
reported unpaid study and test-
to Mot.
Class
Cert.
4.
Further,
plaintiffs estimate that, based on the Oregon Nurses Association's
purported membership,
there
are
at
least
"849 nurses"
who
potentially affected by the challenged payment practice.
Mem.
in Supp.
of Mot.
Class Cert.
7
are
Pls.'
(citing Farra Decl.
Ex. A) .
Therefore, the putative class is sufficiently numerous to satisfy
Fed. R. Civ. P. 23 (a) (1).
II.
Common Questions of Law or Fact
Fed. R. Civ.
P.
23(a)
requires that "there are questions of
law or fact common to the class."
provision
"has
been
construed
Fed. R. Civ. P. 23(a) (2).
permissively
[such
that]
This
[a]ll
questions of fact and law need not be common to satisfy the rule."
Hanlon, 150 F.3d at 1019.
Instead, the "existence of shared legal
issues with divergent factual predicates is sufficient,
as is a
common core of salient facts coupled with disparate legal remedies
within the class."
131 S.Ct. 2541,
the
"claims
Id.; see also Wal-Mart Stores, Inc. v. Dukes,
2551
must
(2011)
depend
Page 7 - OPINION AND ORDER
(in order to be common to the class,
upon
a
common
contention
[and
this
contention]
must
be
of
classwide resolution")
"The
threshold
Sorenson
v.
such
a
nature
that
it
is
capable
of
(citation and internal quotations omitted).
requiremen[t]
Concannon,
893
of
commonality
F.Supp.
1469,
[is]
high."
(D.Or.
1479
not
1994)
(citation and internal quotations omitted).
Here,
defendant
does
requirement is fulfilled.
not
dispute
that
the
commonality
Defendant subjected each putative class
member to the same policies regarding test-taking and study time;
this is precisely the payment practice at issue in this lawsuit.
As a result, the potential class members'
the same laws.
statutes
See, e.g., Compl.
common
to
the
~
putative
47
claims are governed by
(listing applicable Oregon
class'
claims).
Accordingly,
plaintiff's claims present common questions of law and fact.
III. Typicality
Pursuant to Fed. R. Civ. P. 23(a), "the claims or defenses of
the
representative parties
defenses of the class."
[must be]
typical
of the
Fed. R. Civ. P. 23 (a) (3).
claims
or
The claims "are
'typical' if they are reasonably co-extensive with those of absent
class members; they need not be substantially identical."
150 F.3d at 1020.
When assessing typicality,
Hanlon,
the court examines
"the nature of the claim or defense of the class representative,
and not to the specific facts from which it arose or the relief
sought."
Hanon,
976
threshold requiremen[t]
F.2d
at
508.
Like
of typicality [is]
Page 8 - OPINION AND ORDER
commonality,
not high."
"[t]he
Sorenson,
893 F.Supp. at 1479.
A.
Caregivers who Signed Releases
Defendant asserts that none of the representative plaintiffs
~execute[d]
the retro-pay forms reflecting their receipt of wages,"
such that their claims are not typical.
Cert.
4 n.l.
the forms."
~signed
Dunlap
Plaintiffs argue,
Decl. ) .
Def.'s Resp. to Mot. Class
to the contrary, that Ms.
Pl.'s Reply to Mot.
Ms.
Dunlap,
however,
Class Cert.
does
declaration that she signed a Release form.
~refused
not
9
(citing
specify
Rather,
Dunlap
in
Ms.
her
Dunlap
to sign" the Release and, as such, has not been paid the
wages that defendant concedes are due and owing.
Dunlap Decl. 11
11-15.
is
Therefore,
as
defendant
notes,
there
no
evidence
indicating that any of the named plaintiffs executed a Release
and/or received wages.
This does not necessarily mean that typicality is lacking.
Defendant previously represented to this Court that executing a
Release would not affect a potential class member's ability to join
in this action and obtain additional relief:
If the caregivers believe they are entitled to liquidated
damages under the FLSA or penalty wages under ORS Chapter
652 and 653 or that they are entitled to an additional
year's worth of unpaid study time (as plaintiffs contend
in this lawsuit), they are free to assert as much in
litigation. If asked, St. Charles' representatives make
clear that the caregivers' rights in the litigation will
not be affected by their participation in the meetings.
Def.'s Resp. to Mot. Limit Commc'ns 8-9
Page 9 - OPINION AND ORDER
(citations omitted); see
also
Answer
17-26
~~
(pleading
no
Release-based
Thereafter, defendant notified caregivers that
~sign[ing]
you
from
participating
in
the
lawsuit
to
any type
does not
of 'release' in regard to study and test-taking time .
prevent
defense).
collect
all
amounts due to you for your unpaid study and test-taking time."
Proposed Curative Notice 2. 3
Therefore,
because these Releases do not preclude putative
class members from pursuing claims akin to plaintiffs', they are
immaterial
proceedings.
members
who
to
the
Court's
While
executed
defendant
the
3
analysis
is
at
correct
retro-pay
forms
this
that
and
stage
in
the
~putative
class
received
their
The Court acknowledges that defendant now maintains these
Releases are legally binding, especially as to the putative class
members' state law claims, such that ~the Court will have to
resolve the question of whether retro-pay forms are valid."
Def.'s Resp. to Mot. Class Cert. 5; see also id. at 6-7 (~[t]he
effect of the forms will be a key issue in this case, one that
bears not only on the absent class members' damages but in their
very right to recover relief under state law").
Defendant,
however, cannot obtain an advantage in these proceedings by
taking positions that contravene those previously asserted.
See
Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d
983, 993 (9th Cir. 2012) (judicial estoppel ~is an equitable
doctrine invoked not only to prevent a party from gaining an
advantage by taking inconsistent positions, but also because of
general considerations of the orderly administration of justice
and regard for the dignity of judicial proceedings, and to
protect against a litigant playing fast and loose with the
courts") (citations and internal quotations omitted); see also
New Hampshire v. Maine, 532 U.S. 742, 749-50, reh'g denied, 533
U.S. 968 (2001). Accordingly, the Court relies on defendant's
prior representation that executing a Release does not impact a
caretaker's ability to participate fully in this lawsuit.
Nonetheless, even assuming that these forms were binding, they
would not necessarily bar class certification; rather, the class
could be limited to those caregivers who did not sign a Release.
Page 10 - OPINION AND ORDER
overtime
wages
litigation,"
cannot
recover
additional
these
damages
amounts
may
be
again
recoverable
defendant's allegedly willful violation of the law.
40-41, 49-50.
in
this
due
to
~~
See Compl.
In other words, to the extent that different class
members may be entitled to recover different amounts due, in part,
to these Releases,
this is a damage calculation issue and not a
basis to deny class certification.
B.
See Hanon,
976 F.2d at 508.
Former Caregivers
Defendant also contends that plaintiffs, as currently employed
caregivers,
have
claims
former employees.
fundamentally
Defendant relies on Or. Rev.
which governs penalty wages,
class
different
certification.
See
from
Stat.
those
§
of
652.150,
as the dispositive statute barring
Def. 's
Resp.
to
Mot.
Class
Cert.
9
(plaintiffs' claims are not typical of "former registered nurses,
who will assert final paycheck claims under ORS 652.150").
Under Or. Rev. Stat.
willfully
failing
termination,
as
overtime wages,
Rev. Stat.
§
to
§
pay:
652.150, an employer can be liable for
( 1)
wages
required by Or.
as required by Or.
653.055.
due
Rev.
to
Stat.
Rev.
Stat.
an
employee
652. 14 0;
§
§
or
upon
( 2)
653.261 and Or.
Herb v. Van Dyke Seed Co., 2012 WL 4210613,
*2 (D.Or. Sept. 19, 2012).
Because plaintiffs allege the failure
to pay regular and overtime wages under Or. Rev. Stat.
§
653.261,
for which they are seeking penalty wages, Or. Rev. Stat.
§
652.150
is clearly applicable to the case at bar.
Page 11 - OPINION AND ORDER
See Compl.
~~
47-50.
Defendant is correct, however, that former caregivers may also
have a cognizable claim under Or.
governs
final
employees,
paycheck
claims,
whereas
Nevertheless,
do not.
Rev.
Stat.
§
652.140,
plaintiffs,
as
which
current
penalty claims arising from a
defendant's failure to pay regular and overtime or termination
wages
are
alternate
4210613 at
*2-4.
theories
of
See
recovery.
In other words,
Herb,
2 012
where premised on the
WL
same
allegedly wrongful conduct, a plaintiff can receive a penalty for
unpaid regular and/ or overtime wages
termination,
but
not
both;
damages would be the same.
in
either
or unpaid wages
instance,
the
due upon
amount
of
See, e.g., Thiebes v. Wal-Mart Stores,
Inc., 2004 WL 1688544, *10 (D.Or. July 26, 2004); see also Def.'s
Resp.
to Mot.
Class Cert.
10
("former registered nurses are not
entitled to both final paycheck penalties under ORS 652.140 and
unpaid overtime penalties under ORS 653.055 for the same wrong,
namely, failure to pay for study and test-taking time")
(emphasis
omitted) .
Here, Ms. Giles notified defendant that its payment practices
were illegal in November 2010,
over two years before defendant
elected to institute a new policy and compensate caregivers for
required study and test-taking time; during this period, some of
the affected caregivers ended their employment.
Regardless, it is
undisputed that all of the claims in this case are based on the
same
employer
misconduct,
Page 12 - OPINION AND ORDER
notably,
the
failure
to
provide
compensation
Armstrong,
for
certain
certification
275 F.3d at 868-69
requirements.
(in cases involving a system-wide
policy or practice, typicality exists if the proposed class members
have
injuries
"result[ing]
Therefore,
similar
from
the
to
those
same,
of
the
named
injurious
plaintiff
course
of
and
conduct").
to the extent that plaintiffs are seeking to recover
unpaid regular and overtime wages due to defendant's allegedly
illegal payment practices, plaintiffs' claims are "reasonably coextensive" with those of former caregivers.
1020.
IV.
Hanlon, 150 F.3d at
Thus, the typicality requirement is met.
Adequacy
Under
Fed.
R.
Civ.
P.
23 (a),
"the
representative
parties
[must] fairly and adequately protect the interests of the class."
Fed.
R.
proposed
Civ.
P.
23(a) (4)
representative
"This factor requires:
Plaintiffs
interest with the proposed class,
do
and
not
( 2)
have
that
represented by qualified and competent counsel."
Bank
Nat' 1
Ass'n,
2009
WL
5149135,
*5
(D.Or.
( 1)
that the
conflicts
Plaintiffs
Capps v.
Dec.
28,
of
are
U.S.
2009)
(citation and internal quotations omitted).
Initially,
defendant
does not dispute that plaintiffs are
represented by qualified and competent counsel.
See generally
Def.'s Resp. to Mot. Class Cert.; see also Pls.' Mem. in Supp. of
Mot. Class Cert. 10-11 ("counsel is a highly experienced employment
litigator with significant trial experience, who has prosecuted and
Page 13 - OPINION AND ORDER
defended employment law claims, to include wage and hour lawsuits,
involving large,
lawyer
teams
institutional employers,
from
big,
well-funded
law
representing defendant in this action")
13).
often opposing multifirms
like
the
(citing Farra Decl.
one
~~
7-
Accordingly, whether this element is met hinges on whether a
conflict of interest exists between the named plaintiffs and the
putative class.
A.
Caregivers who Signed Releases
Defendant
asserts
representatives
that
because
plaintiffs
they
did
not
are
not
execute
adequate
class
Releases.
As
discussed above, however, the Releases do not impact a caregiver's
ability to participate in this lawsuit.
In other words, plaintiffs
share the same interests as the putative class members, even those
who
signed Releases,
in that
they all
seek to recover
damages
stemming from defendant's failure to fully compensate its employees
for required study and test-taking time.
In addition, plaintiffs represent that they "stand willing and
able to zealously prosecute the litigation on behalf of the class."
Pls.' Mem. in Supp. of Mot. Class Cert. 10.
plaintiffs' assertion.
The record supports
For instance, Ms. Giles refused an offer
from defendant to be compensated for study and test-taking time
"from December 2,
2008,
caregivers
would
present."
Supplemental Giles Decl.
throughout
this
only
to present" because
receive
lawsuit,
Page 14 - OPINION AND ORDER
Ms.
wages
similarly-situated
"from August
Ex. A,
Giles
and
1,
at 11-13.
her
2010,
to
Moreover,
counsel
have
appropriately pursued the potential class members' interests.
See
generally Pl.'s Mem. in Supp. of Mot. Limit Commc'ns (requesting an
order limiting defendant's prospective communications with putative
class members due to its false and/or misleading statements, which
this
Court granted) .
such,
As
no
conflict
of interest exists
between plaintiffs and those caregivers who signed Releases.
B.
Existence of a Unique Defense
Defendant next contends that a conflict of interest exists,
such
that
Ms.
Giles
is
not
an
adequate
class
representative,
4
because she is subject to a unique defense under Or. Rev. Stat. §
12.220:
The ordinary rule in class action practice is that the
lead plaintiff's and the putative class' claims are
commenced for statute of limitations purposes on the date
the class complaint is filed .
. in the ordinary case,
plaintiff's claims and the putative class' claims would
be commenced on January 4, 2013, the filing date of this
case. Plaintiff, however, seeks to use the filing date of
the small claims court action as the date her and the
class' claims were commenced . . . Plaintiff's attempt to
do so makes her (but not the putative class) subject to
a statute of limitations defense under ORS 12.220 because
she voluntarily dismissed the small claims action.
Def.'s Resp. to Mot. Class Cert. 8.
Thus, defendant is not, in fact, asserting that Or. Rev. Stat.
4
Defendant's argument ignores the fact that, at this stage
in the proceedings, several other plaintiffs have been named as
potential class representatives, none of whom are subject to this
alleged defense because they did not file a complaint in small
claims court.
See Local Joint Exec. Bd. of Culinary/Bartender
Trust Fund v. Las Vegas Sands, Inc., 244 F3d 1152, 1162 n.2 (9th
Cir.), cert. denied, 534 U.S. 973 (2001) (the adequacy
requirement "is satisfied as long as one of the class
representatives is an adequate class representative").
Page 15 - OPINION AND ORDER
§
12.220,
which
limitations
for
provides
certain
for
a
tolling
"involuntarily
applicable to the case at bar.
of
the
dismissed"
statute
of
actions,
is
See Supplemental Giles. Decl. Ex.
A, at 3; Def.'s Resp. to Mot. Class Cert. 7.
While difficult to
decipher, defendant's argument implies that portions of Ms. Gile's
claims may be time-barred.
argument
or
limitations
evidence
period
for
Yet defendant does not provide any
regarding
the
plaintiffs'
proper
accrual
action;
merely contends that, due to Or. Rev. Stat.
§
instead,
date
or
defendant
12.220, plaintiffs'
claims "commenced" in January 2013 instead of December 2011.
Plaintiffs, however, did not rely on the relation-back period
afforded by Or. Rev.
Stat.
§
12.220 in asserting that the "look
back period should be measured from December 2011."
Class
Mot.
Cert.
6.
Rather,
Ms.
Giles
Pls.' Reply to
"relied
on
the
representation made by management in delaying the filing of the
suit" until January 2013. 5
5
Supplemental Giles Decl. Ex. A, at 12.
Specifically, the record reflects that Ms. Giles delayed
filing suit because defendant represented, in December 2011, that
it would effectuate a change to its payment practices concerning
required study and test-taking time. Ms. Giles first notified
defendant that failing to compensate employees for required study
and test-taking time was unlawful in November 2010.
See Giles
Decl. ~ 6. After defendant neglected to remedy this practice,
Ms. Giles filed a small claims action in December 2011, which she
only agreed to dismiss based on defendant's written agreement to
begin drafting a policy to compensate employees for certain
certification requirements; after over one year of constant
communications, defendant still had yet to change its payment
policy, such that plaintiff contacted an attorney and filed suit.
Id. at ~~ 7-28; see also Supplemental Giles Decl. Ex. A, at 12
(Ms. Giles "relied on the representation made by management in
delaying the filing of the suit," such that "SCMC has waived
Page 16 - OPINION AND ORDER
Thus, defendant's argument that Ms. Giles is subject to a unique
defense pursuant to Or.
Rev.
Stat.
12.220 is without merit.
§
Plaintiffs are therefore adequate class representatives.
V.
Predominance
Fed. R. Civ. P. 23(b) mandates that "questions of law or fact
common to class members predominate over any questions affecting
only individual members."
Fed.
R.
Civ.
P.
23 (b) (3).
"The Rule
2 3 (b) ( 3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation."
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
"[p] lain tiffs
issues,
need not
establish
that
there
are
no
As such,
individual
only that the class issues predominate and that a class
action is superior."
(D.Or. 2009)
Phelps v.
3PD,
(citations omitted).
Inc.,
261 F.R.D.
548,
559
"When common questions present
a significant aspect of the case and they can be resolved for all
members
of the
class
in a
single adjudication,
there
is
clear
justification for handling the dispute on a representative rather
than on an individual basis."
Hanlon, 150 F.3d at 1022 (citation
and internal quotations omitted).
The
predominance
requirement
is
met
in
the
case
at
bar.
Contrary to defendant's assertion, this finding does not repudiate
Comcast.
contends.
Notably, Comcast can not be read as narrowly as defendant
In
Comcast,
the
Supreme
Court
considered
class
and/or is estopped from claiming that the statute of limitations
only runs back from when I filed suit") .
Page 17 -OPINION AND ORDER
certification for more than two million current and former Comcast
subscribers who sought damages for purported violations of federal
antitrust laws.
Comcast, 133 S.Ct. at 1429-30.
The Supreme Court
held
R.
met
that
Fed.
Civ.
P.
23 (b) (3)
was
not
because
the
plaintiffs' model of damages fell "far short of establishing that
damages are capable of measurement on a classwide basis"; while
such "[c]alculations need not be exact" at the class-certification
stage,
"any model supporting a plaintiff's damages case must be
consistent with its liability case, particularly with respect to
the alleged anticompetitive effect of the violation."
(citation and internal quotations
As
omitted).
a
Id. at 1433
result,
the
plaintiffs' motion for class certification was denied because the
proposed damages model failed to "isolate damages resulting from
In other words,
any one theory of anti trust impact."
the
inability to match a damages model with any one theory of liability
was fatal to the class.
the
Thus,
presumption,
23 (b) (3)
Id. at 1433-35.
Supreme
Court's
holding
uncontested by the parties,
requires
damages
to
be
was
that
measurable
based
Fed.
on
R.
based on
the
Ci v.
a
P.
common
methodology applicable to the entire class in antitrust cases.
As
such,
is
nothing
in
Comcast
indicates
that
this
presumption
applicable to wage and hour claims under federal and state law.
See,
e.g.,
(N.D.Ill.
"damages
Harris v.
comScore,
Inc.,
(language
Apr.
2,
2013)
must
be
measurable
Page 18 - OPINION AND ORDER
based
in
2013 WL 1339262,
Comcast
on
a
*11 n. 9
indicating
common
that
methodology
applicable to the entire class .
bind this court")
is merely dicta and does not
(citing Justices Ginsburg and Breyer, dissenting:
"the decision should not be read to require, as a prerequisite to
certification, that damages attributable to a classwide injury be
measurable on a class-wide basis").
decision does not
In any event, "[t]he Comcast
infringe on the
long-standing principle that
individual class member damage calculations are permissible in a
certified class under Rule 23 (b) (3)
2146925,
Indus.
*24
(E.D.Cal.
Inc.,
716
calculations
F.3d
alone
May 15,
510,
cannot
If
Munoz v. PHH Corp., 2013 WL
2013);
see also Leyva v.
511-114
(9th
defeat
Cir.
2013)
certification")
Medline
("damage
(citation
omitted).
For instance, in Leyva, a class action involving wage and hour
claims under California law, the Ninth Circuit interpreted Comcast
as requiring "that the plaintiffs must be able to show that their
damages stemmed from the defendant's actions that created the legal
liability."
found
Leyva, 716 F.3d at 511-14.
Comcast
to
be
distinguishable:
As such, the Leyva court
"unlike
in
Comcast,
if
putative class members prove Medline's liability, damages will be
calculated based on the wages each employee lost due to Medline's
unlawful practices."
Id. at 514.
This conclusion was strengthened
by evidence of record reflecting "Medline's computerized payroll
and time-keeping database [,]
[which]
would enable the
court to
accurately calculate damages and related penalties for each claim."
Id.
Page 19 - OPINION AND ORDER
Other courts from within the Ninth Circuit have similarly held
that Comcast does not act as a bar to class actions where the
plaintiffs provide a workable damages model.
See, e.g., Parra v.
Bashas', Inc., 2013 WL 2407204, *32 (D.Ariz. May 31, 2013)
(grocery
store employees' model for calculating back pay survived Comcast:
"through a computer program,
and relying upon objective factors
such as the individual employee payroll record (dates of employment
job position, hours worked)
the
record,
losses
for
quotations
and the wage scale, which is part of
the plaintiffs will be able to
each eligible class member")
omitted) ;
see
also
In
re
calculate back pay
(citation and internal
Diamond Foods,
Inc.,
Sec.
Litig., 2013 WL 1891382, *11-12 (N.D.Cal. May 6, 2013); Munoz, 2013
WL 2146925 at *24-25; Barbosa v. Cargill Meat Solutions Corp., 2013
WL 3340939, *9-10 (E.D.Cal. July 2, 2013); but see Def.'s Resp. to
Mot. Class Cert. 13 (citing Farrand v. Fed. Express Corp., 2103 WL
1793951,
*4-5
(C.D.Cal Apr.
5,
2013);
and Ginsburg v.
Comcast
Commc'ns Mgmt. LLC, 2013 WL 1661483, *7 (W.D.Wash. Apr. 17, 2013)).
This Court finds the reasoning in Leyva persuasive, especially
because the relevant facts are analogous to the present case.
The
predominance inquiry will therefore be satisfied if plaintiffs: (1)
can establish that their damages arise out of defendant's allegedly
wrongful conduct; and (2) provide a methodology, even if "not fully
developed",
for
calculating
damages
measurement on a classwide basis."
that
are
"capable
of
Parra, 2013 WL 2407204 at *32
(quoting Comcast, 133 S.Ct. at 1433); see also Leyva, 716 F.3d at
Page 20 - OPINION AND ORDER
514.
One
common
question
drives
this
i.e.
lawsuit
whether
defendant failed to pay current and former caregivers regular and
overtime
wages
for
required
study
and
test-taking
time,
in
violation of state and federal law.
As discussed above, there are
no
presented.
significant
individual
issues
Further,
it
is
undisputed that plaintiffs, along with the putative class members,
were subjected to the same illegal payment practice.
Policy; see also Morgan Decl.
2-3.
~~
wages are due and owing as a
See generally
Defendant acknowledges that
result of this practice and that
plaintiffs and the putative class are "similarly-situated."
Supplemental Giles Decl. Ex. A, at 11.
study
and
test-taking
ascertainable
Transcript'
'retro-pay'
that
for
looking
"by
time
at
defendant
Critically, the amount of
affected
the
maintains
Id.;
caregivers
computerized
for
forms; or as a last resort,
each
is
easily
'Caregiver
caregiver;
its
'Table 1' in Defendant's
'Compensation for Study and Test Taking Time' policy listing 'the
maximum hours that apply 'regardless of the number of times that a
caregiver must take the certification test in order to pass it.'"
Pls.' Reply to Mot. Class Cert. 11 (citation omitted)
In sum, if the potential class members prevail on the issue of
liability,
damages
will
be
calculated
based
on
defendant's
computerized records reflecting the wages that each caregiver lost
as a result of defendant's unlawful payment practice.
716 F.3d at 514.
Accordingly,
Page 21 - OPINION AND ORDER
See Leyva,
common questions of law and fact
predominate over any individual issues.
VI.
Superiority
Pursuant to Fed. R. Civ. P. 23(b), certification is proper if
"a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy."
23 (b) (3).
Fed.
R.
Civ.
"[T] he purpose of the superiority requirement
P.
is to
assure that the class action is the most efficient and effective
means of resol[ution] ."
617
F.3d
1168,
1175
quotations omitted).
Wolin v.
(9th
Cir.
Jaguar Land Rover N. Am., LLC,
2010)
(citation
and
internal
"The superiority inquiry under Rule 23(b) (3)
requires determination of whether the objectives of the particular
class action procedure will be achieved in the particular case,"
which "necessarily involves a comparative evaluation of alternative
mechanisms
of
dispute
(citation omitted) .
resolution."
Hanlon,
150
F. 3d
at
1023
"Where recovery on an individual basis would
be dwarfed by the cost of litigating on an individual basis, this
factor weighs in favor of class certification."
Wolin, 617 F.3d at
1175 (citations omitted)
Here,
it is in the class members' best interest to litigate
their claims in a single action.
Individual actions would entail
increased expenses, duplication of discovery, and a potential for
inconsistent results.
See Phelps,
Enters. v. Weyerhaeuser Co.,
2004).
261 ·F. R. D.
2004 WL 2997526,
at
*5
563;
Morelock
(D.Or.
Dec. 16,
Specifically, class members would have "less litigation or
settlement leverage, significantly reduced resources and no greater
Page 22 - OPINION AND ORDER
prospect
for
recovery"
litigate their claims.
should they be required to
Hanlon, 150 F.3d at 1023.
individually
In fact, most
class members would likely forego pursuing claims,
since their
individual damages are relatively small and litigating in federal
court or elsewhere is costly.
In addition,
6
it would be far more time consuming for each
individual putative class member to seek and compel discovery.
For
example, the same hospital administrators would need to be deposed
numerous times regarding the same subject matter.
Further,
the
parties would need to individually retain experts and/or litigate
damages issues.
For these reasons,
courts often certify class
actions when an employer's wage and hour practices similarly impact
a large number of workers.
See, e.g., Lerwill v. Inflight Motion
Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978).
A class action
is thus the most efficient and economical approach for pursuing the
claims at issue.
P.
See Amchem Prods., 521 U.S. at 615 (Fed. R. Civ.
23 exists to vindicate "the rights
of groups of people who
individually would be without effective strength to bring their
opponents into court at all").
6
While not dispositive, many of the putative class members
are unlikely to bring individual actions because defendant led
them to believe that they released any and all claims as a result
of being compensated for two years of study and test-taking time.
As plaintiffs allege, however, putative class members may be
entitled to three, as opposed to two, years of back wages and
further amounts for penalties or interest.
Defendant's behavior
further indicates that a class action would best serve the
interests of the potential class members.
Page 23 - OPINION AND ORDER
Moreover,
litigation
"[p]laintiffs
pending
know
elsewhere"
and
of
no
it
related
is
individual
undisputed
concentrating the litigation in this forum is desirable.
Mem.
Cert.
that
Pls.'
in Supp. of Mot. Class Cert. 15; Def.'s Resp. to Mot. Class
15-16.
Finally,
"[a] lthough the
proposed class
will be
large, Plaintiffs do not anticipate any serious problems managing
this case as a class action [because] Defendant's payroll records
and the transcripts for each caregiver showing the certifications
taken
are
computerized
and,
as
noted,
Defendant
has
already
identified the current caregivers entitled to unpaid study and test
taking time from January 1, 2010, forward."
Pls.' Mem. in Supp. of
Mot. Class Cert. 15 (citing Farra Decl. Ex. C).
To the extent that
plaintiffs prove they are entitled to damages prior to January 1,
2010, the same process can be used to identify current and former
caregivers and the wages due to them.
the superior vehicle.
Page 24 - OPINION AND ORDER
Therefore, a class action is
CONCLUSION
Plaintiffs'
GRANTED.
motion
The parties'
for
class
certification
(doc.
IT IS SO ORDERED.
this~day
is
requests for oral argument are DENIED as
unnecessary.
Dated
35)
of October 2013.
Ann Aiken
United States District Judge
Page 25 - OPINION AND ORDER
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