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Parra v. Bashas', Inc.

United States District Court, Ninth Circuit

May 31, 2013

Jose Parra, Gonzalo Estrada, and Aurelia Martinez, Plaintiffs,
v.
Bashas', Inc. Defendant.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Introduction

More than a decade ago, current and former Hispanic[1] employees of defendant Bashas', Inc. filed this action alleging race and national origin discrimination in violation of Title VII of the 1964 Civil Rights Act as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., for both disparate impact and disparate treatment, and intentional race discrimination in violation of 42 U.S.C. § 1981. Plaintiffs allege that Bashas' has discriminated against them with respect to pay and working conditions. In 2005, this court denied certification of a pay class, but granted certification as to the working conditions claim. Parra v. Bashas', Inc., 2005 WL 6182338 (D. Ariz. 2005) ("Parra I"). In the ensuing years, for a host of reasons recounted below, this action has not moved beyond the class certification stage. Pending before the court is the most recent permutation of the class certification issue.

Background

Bashas' Inc. operates three grocery store chains with three different formats and monikers: A.J.'s Fine Foods ("A.J.'s"); (2) Bashas'; and (3) Food City. In this putative class action, named plaintiffs Gonzalo Estrada, [2] a Hispanic former Food City hourly employee, and Aurelia Martinez, a Hispanic current Food City hourly employee, [3] allege that Bashas' pays its "predominantly" Hispanic Food City employees, less than it pays "the Caucasian employees at A.J.'s Fine Foods and Bashas' for performing the same work." First Amended Complaint ("FAC") (Doc. 116) at 1:26-2:2, ¶ 1 ("the pay claim"). Plaintiffs further allege that the Food City Hispanic employees "are required to work under conditions that are typically less safe and less hygienic than the conditions found at A.J.'s... and Bashas'." Id. at 2:2-4, ¶ 1 ("the working conditions claim").

In Parra I, this court granted plaintiffs' motion for class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to the working conditions claim, but denied certification of the pay claim, because there was not "sufficient commonality among the class members" as to the latter claim. Parra I, 2005 WL 6182338, at *16. Commonality, as Rule 23(a)(2) requires for all class actions, was lacking because, as the parties conceded, "the contested pay scales ha[d] merged and, for the most part, are now identical." Id. at *15 (citations omitted).

On appeal, the Ninth Circuit faulted this court for "only look[ing] at the current pay scales." Parra v. Bashas', Inc. , 536 F.3d 975, 979 (9th Cir. 2008) ("Parra II"), cert. denied, Bashas', Inc. v. Parra , 555 U.S. 1154, 129 S.Ct. 1050, 173 L.Ed.2d 470 (2009). This court also should have "consider[ed] the evidence of past pay disparities and discrimination common to the Hispanic workers at Food City." Id . Taking that evidence into account, the Court found that the "pay scales were common for all Bashas', Inc. employees and provided for different pay for similar jobs based only on where the employee worked." Id . Additionally, the Ninth Circuit pointed out that "[t]he class definition seeks to reach those Hispanic employees who suffered past discrimination under th[o]se pay scales." Id . (emphasis added). Given plaintiffs' "extensive evidence showing Bashas', Inc.'s discriminatory pay practices commonly affected all members of the proposed class[, ]" the Ninth Circuit reversed this court's commonality finding and remanded, instructing it to "consider[]... the remaining class certification factors[.]" Id. at 979-980.

Thereafter, the issue of class certification as to the pay claim was in a state of legal limbo for quite a while. Bashas' filing of a voluntary Chapter 11 bankruptcy petition resulting in an automatic statutory stay, heavily contributed to that state, as did this court's decision to "defer resolution of the class certification issue pending a decision" in Wal-Mart Stores, Inc. v. Dukes , 603 F.3d 571 (9th Cir. 2010) ("Dukes II") ( en banc ), cert. granted, ___ U.S. ___, 131 S.Ct. 795, 178 L.Ed.2d 530 (2010). Ord. (Doc. 295) at 2:14-15 (citation omitted). This court opted for deferral "rather than deciding the case in haste without the benefit of the Supreme Court's decision in Dukes[.]" Id. at 2:13-14.

Nearly three years after Parra II, the Supreme Court rendered its decision in Wal-Mart Stores, Inc. v. Dukes , 564 U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ("Dukes"). Vacating certification of a class estimated to include 1.5 million female current or former Wal-Mart employees, the Supreme Court held, inter alia, that plaintiffs did "not establish[] the existence of any common question[, ]" as Rule 23(a)(2) requires. Id. at 2557 (footnote omitted). In accordance with this court's order, the parties then simultaneously filed supplemental briefs and replies with respect to the potential impact of Dukes upon the present case. After considering all of the submissions filed with respect to plaintiffs' 2004 motion for class certification, [4] their positions during oral argument thereon, and the parties' supplemental Dukes briefs, replies and other filings, the court finds as follows.

Discussion

Originally, plaintiffs sought class certification pursuant to Fed.R.Civ.P. 23(b)(2) as to both the pay and the working conditions claims; and in Parra I, this court confined its analysis accordingly. Now, however, in light of Dukes, the plaintiffs are seeking certification of the pay claim pursuant to Fed.R.Civ.P. 23(b)(3). Furthermore, also in light of Dukes, Bashas' is requesting that this court reconsider its decision certifying the working conditions claim, and decertify that claim. The court will address the myriad of issues surrounding class certification as to each of these two claims separately, beginning with the pay claim. But first, the court will outline the legal framework for its analysis.

I. Class Certification Legal Framework

Rule 23 "give[s] the district court broad discretion over certification of class actions[.]" Stearns v. Ticketmaster Corp. , 655 F.3d 1013, 1019 (9th Cir. 2011). However, class certification remains "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Comcast Corp. v. Behrend, ___ U.S. ___ , 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki , 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). "[T]o justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Dukes , 131 S.Ct. at 2550 (internal quotation marks and citations omitted).

The Dukes Court made clear that "Rule 23 does not set forth a mere pleading standard." Dukes , 131 S.Ct. at 2551. Therefore, "a party seeking to maintain a class action must affirmatively demonstrate... compliance' with Rule 23." Comcast , 133 S.Ct. at 1432 (quoting Dukes , 131 S.Ct. at 2551-2552). That means, "a party must... be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, ' typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a)."[5] Id . (quoting Dukes , 131 S.Ct. at 2551) (emphasis in original). Satisfying those prerequisites, "effectively limit[s]... class claims to those fairly encompassed by the named plaintiff's claims." Dukes , 131 S.Ct. at 2550 (internal quotation marks and citations omitted).

When analyzing the propriety of class certification, the Supreme Court has "[r]epeatedly... emphasized that it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, ' and certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.''" Comcast , 133 S.Ct. at 1432 (quoting Dukes , 131 S.Ct. at 2551) (quoting in turn General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 160-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The exact contours of a "rigorous analysis, " as well as the extent to which courts may "probe behind the pleadings[, ]" is still evolving. What is certain though is that a rigorous analysis "will frequently entail overlap with the merits of the plaintiff's underlying claim.'" Id . (quoting Dukes, 564 U.S. at ___, 133 S.Ct. at 2551). "That is so because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Id . (quoting Dukes , 564 U.S., at ___, 131 S.Ct. at 2551) (other quotation marks and citation omitted).

Post-Dukes, the Ninth Circuit has stressed that "a district court must consider the merits if they overlap with the Rule 23(a) requirements.") Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 981 (9th Cir. 2011) ("Ellis I") (emphasis in original) (citations omitted). Indeed, the Supreme Court has recently cautioned that "Rule 23 grants no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent - but only to the extent - that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen , 133 S.Ct. at 1194-95; see also Comcast , 133 S.Ct. 1426. "To hold otherwise would turn class certification into a mini-trial." Ellis I , 657 F.3d at 983 n. 8. This court thus will "not turn the[s]e class certification proceedings into a dress rehearsal for the trial on the merits." See Messner v. Northshore University HealthSystem , 669 F.3d 802, 811 (7th Cir. 2012) (citations omitted).

That said, neither "the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies [Rule 23]." United Steel, Paper & Forestry, Rubber, Manufacturing Energy, Allied Industrial & Service Workers International Union v. ConocoPhillips Co. , 593 F.3d 802, 809 (9th Cir. 2010). "[A]ctual, not presumed, conformance with Rule 23(a) remains... indispensable." Falcon , 457 U.S. at 161. Consequently, "a court is not required to "unquestioningly accept a plaintiff's arguments as to the necessary Rule 23 determinations." Gonzales v. Comcast Corp., 2012 WL 10621, at *9 (E.D.Cal. Jan. 3, 2012) (internal quotation marks and citation omitted), adopted in full, 2012 WL 217708 (E.D.Cal. Jan. 23, 2012).

Once all four prerequisites of Rule 23(a) are shown, "the party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b)." Comcast , 133 S.Ct. at 1432. In the present case, the provision at issue is subsection three, which requires a court to find that "the questions of law or fact common to class members predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). Leaving no doubt, the Comcast Court expressly held that "[t]he same analytical principles[, ]" outlined above, requiring a rigorous analysis and "frequently entail[ing] some overlap with the merits[, ]... govern Rule 23(b)." Comcast , 133 S.Ct. at 1432 (citation omitted). These principles form the backdrop for the pending issue of whether to certify a class as to plaintiffs' pay claim, and also whether to decertify the class as to their working conditions claim.

II. Pay Claim

A. Fed.R.Civ.P. 23(a)

1. Numerosity

Numerosity, the first prerequisite for class certification under Rule 23(a), is shown when "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). In Parra I, Bashas' did not contest certification based upon a lack of numerosity, and the putative class has "thousands of members[.]" See Parra I, 2005 WL 6182338, at *14 (citations omitted). The plaintiffs thus have readily shown numerosity. Further, because Bashas' did not contest numerosity on appeal, nor does Bashas' raise that issue now, the court adheres to that earlier finding. Consequently, the court is free to turn to the vigorously disputed issue of whether, in the wake of Dukes, plaintiffs have met their burden of showing commonality as to their pay claim.

2. Commonality

The second requirement under Rule 23(a) is the existence of "questions of law or fact common to the class[.]" Fed.R.Civ.P. 23(a)(2). Commonality under that Rule was "[t]he crux" of Dukes , 131 S.Ct. at 2550. In the present case, the parties strenuously disagree as to the applicability of Dukes, especially given the procedural posture of this case - on remand after a finding of commonality. From Bashas' perspective, Dukes "substantially restated the standard for establishing commonality[.]" Def.'s Resp. (Doc. 304) at 5:20, n. 1 (citations omitted). Strongly implying that because Dukes constitutes an intervening change in law, Bashas' further argues that "[n]either the law of the case doctrine nor the mandate rule" require this court to abide by the Ninth Circuit's finding of commonality in Parra II. Id. at 5:19, n. 1. Hence, Bashas' believes that after Dukes "it is not only proper but necessary [for this court] to revisit Plaintiffs' ability to show commonality." Id. at 5:23, n. 1.

To the contrary, plaintiffs argue that the Ninth Circuit's finding of commonality in Parra II "is unaffected" by Dukes. Pls.' Supp. Br. (Doc. 302) at 16:11. Therefore, plaintiffs assert that Bashas' is "effect[ively]... urg[ing] this Court to ignore the mandate of the Ninth Circuit." Pls.' Reply (Doc. 303) at 6:5-6 (citation omitted). Skirting the critical issue of whether Dukes amounts to a change in controlling law, plaintiffs first observe that the Parra II Court "did not rely on any of the Ninth Circuit's rulings in Wal-Mart, now reversed by the Supreme Court["] in Dukes. Id. at 16:12-13. While obviously true, [6] it does not necessarily follow that because of that Dukes is not an intervening change in law, as plaintiffs suggest.

Plaintiffs add that Dukes and the present case "raise different commonality issues." Id. at 16:14. Assuming that is so, it also does not necessarily follow therefrom that Dukes does not constitute an intervening change in law. Put differently, it is possible that Dukes is an intervening change in law, regardless of the nature of the commonality issues. Plaintiffs' final response is that "the policy issue in this case is precisely the kind of specific employment practice' found lacking by the Supreme Court in [Dukes]." Id. at 16:19-21. Still, this is not directly responsive to the change in law issue.

a. Law of the Case/Rule of Mandate

It is well settled in this Circuit that "[w]hen a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.'" United States v. Luong , 627 F.3d 1305, 1309 (9th Cir. 2010) (quoting Firth v. United States , 554 F.2d 990, 993 (9th Cir. 1977)). Pursuant to the law of the case, "a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case." Gonzalez v. Arizona , 677 F.3d 383, 389 n. 4 (9th Cir. 2012) (citation omitted) (en banc), cert. granted, - ___ U.S. ___, 133 S.Ct. 476, 184 L.Ed.2d 296 (2012). The law of the case doctrine applies when, inter alia, "the issue in question [was] decided explicitly... in the previous disposition." United States v. Thrasher , 483 F.3d 977, 981 (9th Cir. 2007). Plainly, "the issue in question" here - whether plaintiffs met Rule 23(a)(2)'s commonality standard - was explicitly decided in Parra II. Thus, prior to Dukes, the Ninth Circuit's finding of commonality in Parra II would have been binding upon this court, and the law of the case doctrine would have barred reconsideration of that issue on remand.

The same result holds true with respect to the rule of mandate, which "is similar to, but broader than, the law of the case doctrine." See Id. at 982 (internal quotation marks and citation omitted). "The Supreme Court long ago emphasized that when acting under an appellate court's mandate, an inferior court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided upon appeal; or intermeddle with it, further than to settle so much as has been remanded.'" Matter of Beverly Hills Bancorp , 752 F.2d 1334, 1337 (9th Cir. 1984) (quoting In re Sanford Fork & Tool Co. , 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)). Prior to Dukes, the rule of mandate would have deprived this court of jurisdiction to revisit on remand the Parra II commonality finding. See Luong , 627 F.3d at 1309 (internal quotation marks and citation omitted) ("[I]f a district court errs by violating the rule of mandate, the error is a jurisdictional one[.]") That is so because in reversing this court's "finding that Plaintiffs' originally proposed class lacked commonality under Rule 23(a)(2), " the Ninth Circuit explicitly remanded "for consideration of the remaining class certification factors in accordance with [its] opinion." Parra II , 536 F.3d at 980 (emphasis added).

Importantly, there is some flexibility with respect to the rule of mandate and law of the case doctrines. Indeed, Ninth Circuit "cases make clear that the rule of mandate is designed to permit flexibility where necessary, not to prohibit it." U.S. v. Kellington , 217 F.3d 1084, 1095 n. 12 (9th Cir. 2000) (emphasis added). The Ninth Circuit likewise has recognized that the "[l]aw of the case should not be applied woodenly in a way inconsistent with substantial justice." United States v. Miller , 822 F.2d 828, 832-33 (9th Cir. 1987); see also Yankee Atomic Electric Co. v. United States , 679 F.3d 1354, 1360 (Fed. Cir. 2012) internal quotation marks and citations omitted) ("An appellate mandate does not turn a district judge into a robot, mechanically carrying out orders that become inappropriate in light of subsequent factual discoveries or changes in the law.")

Given that inherent flexibility, there are exceptions warranting a departure from the law of the case and rule of mandate doctrines. Among other reasons, a court has discretion to depart from the law of the case doctrine based upon "intervening controlling authority [which] makes reconsideration appropriate[.]" United States v. Jingles , 682 F.3d 811, 820 (9th Cir. 2012) (internal quotation marks and citations omitted). Further, because "[t]he mandate rule is a subpart of the law of the case doctrine[, ]"... the mandate rule is subject to the same exceptions[]" as the law of the case doctrine. American Express Travel Related Serv. Co. v. Fraschilla (In re Fraschilla) , 235 B.R. 449, 457 (9th Cir. BAP 1999), aff'd, 242 F.3d 381 (9th Cir. 2000) (citing Miller , 822 F.2d at 832). Hence, because the "Ninth Circuit has identified... an intervening change in the law" as one of several "circumstances in which the law of the case doctrine, " need not be applied, " by analogy the rule of mandate doctrine[] [also] need not be applied[]" when there has been such a change in the law. See Allen v. Astrue, 2010 WL 4825925, at *5 (C.D.Cal. 2010) (emphasis added) (citing cases).

In the present case, the issue thus becomes whether, as Bashas' contends, Dukes constitutes an intervening change in the controlling law so as to permit departure from the rule of mandate and law of the case doctrines. See Fraschilla , 235 B.R. at 455 (citing cases)("[T]rial courts are permitted on remand to consider whether any exceptions to the law of the case doctrine excuse compliance with a determination made by an appellate court.") In its first application of Dukes, the Ninth Circuit sweepingly declared it to be "new precedent altering existing case law[, ]" requiring remand to the district court. Ellis I , 657 F.3d at 974. The Ninth Circuit in Ellis vacated and remanded a grant of class certification in a Title VII action alleging gender discrimination by the defendant employer in its promotion and management practices. Admittedly, the Ellis I Court was not faced with the precise issue before this court: whether Dukes is a change in controlling law so as to permit deviating from the law of the case and rule of mandate doctrines. Nonetheless, the Ninth Circuit's broad declaration in Ellis I is a strong signal that it views Dukes as changing the legal landscape with respect to class certification.

Reinforcing this view is the Ninth Circuit's more recent decision in Wang v. Chinese Daily News, Inc. , 709 F.3d 829 (9th Cir. 2013). There, the plaintiffs argued that the defendant had "waived its right to challenge the district court's commonality finding because its opening brief, filed before... Wal-Mart, discussed the existence of common questions only in arguing against Rule 23(b)(3) certification." Id. at 833. The defendant "did not argue the issue of commonality in its discussion of Rule 23(a)." Id . "Generally, an issue is waived when the appellant does not specifically and distinctly argue the issue in his or her opening brief." Id . (internal quotation marks and citation omitted). However, invoking the settled rule that an appellate court "may consider new arguments... if the issue arises because of an intervening change in law[, ]" the Ninth Circuit "conclude[d] that the [Supreme] Court's decision in Wal-Mart present[ed] a sufficiently significant legal development to excuse any failure of [the defendant] to discuss the commonality requirement of Rule 23(a)(2) in its opening brief." Id.

The Ninth Circuit is not alone in its view that Wal-Mart is "new precedent altering existing case law[, ]" Ellis I , 657 F.3d at 974, or a "significant legal development[.]" See Wang , 709 F.3d at 833. Other courts, including district courts within this Circuit, have variously recognized that Dukes: (1) sets forth a "heightened standard of commonality[;]"[7] (2) "represents a significant restatement of the commonality requirement[;]"[8] (3) clarifies the Rule 23(a) commonality element;[9] and (4) "undoubtedly increas[es] the burden on class representatives by requiring that they identify how common points of facts and law will drive or resolve the litigation[.]"[10] Partially based upon this weight of authority, the court is convinced that Dukes represents an intervening change in law.

Additionally, an independent examination of Dukes further convinces this court that the Supreme Court altered the legal standards for assessing commonality by, among other things, adding an additional level of scrutiny under Rule 23(a)(2). More specifically, Dukes adopted the view that "[w]hat matters to class certification... is not the raising of common questions' - even in droves - but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Dukes , 131 S.Ct. at 2551 (internal quotation marks and citation omitted) (emphasis in original). Consequently, in its discretion, and given "the contours of the situation and common sense[, ]" this court finds it appropriate to revisit the commonality issue, notwithstanding the Ninth Circuit's resolution of that issue in Parra II.[11]

Hegler v. Borg , 50 F.3d 1472 (9th Cir. 1995) ("Hegler II"), is closely analogous, and provides additional support for reexamining the commonality issue in light of Dukes. Reversing and remanding, in Hegler v. Borg , 990 F.2d 1258 (9th Cir. 1993), the Ninth Circuit instructed the district court to determine whether a particular error was harmless beyond a reasonable doubt. On remand, the district court "disobeyed the instruction in the mandate because an intervening Supreme Court decision prescribed a different standard." Fraschilla , 235 B.R. at 458. In Hegler II, another Ninth Circuit panel agreed that it "must apply intervening Supreme Court authority to a subsequent appeal[]" as an exception to the law of the case doctrine. Hegler II , 50 F.3d at 1478. Therefore, the Hegler II Court "had no difficulty affirming the [district] court[]" despite that court's disregard of the mandate and the law of the case. See Fraschilla , 235 B.R. at 458 (citation and footnote omitted).

Southern Oregon Barter Fair v. Jackson County , 372 F.3d 1128 (9th Cir. 2004), and Fraschilla , 235 B.R. 449, are also instructive as to when a district court may depart from the mandate and law of the case. In Barter Fair, the Court held that it was not an abuse of discretion to re-examine the merits after the issuance of a preliminary injunction, notwithstanding the law of the case, because an intervening Supreme Court decision "provided important guidance" therein. Barter Fair , 372 F.3d at 1136.

Similarly, in Fraschilla , 235 B.R. 449, the Bankruptcy Appellate Panel ("BAP") held that although its mandate had directed entry of judgment in plaintiff's favor, the trial court did not err by subsequently conducting a trial where, following remand, there had been two intervening Ninth Circuit decisions. One such decision "amplified the importance of the other elements of [nondischargeability for] common law fraud." Id. at 456. The second intervening decision, while "somewhat opaque, " "adjusted the focus" for a finding of nondischargeability, "emphasiz[ing] the need to make an actual finding regarding intent[.]" Id . Those two decisions change[d] the landscape regarding credit card nondischargeability actions... alter[ing] the analysis that was applicable when the BAP decided the initial appeal[]" therein. Id. at 455. As Barter Fair and Fraschilla demonstrate, even if an intervening decision does not go so far as to "prescribe a different standard, " nonetheless, such a decision can warrant a departure from the rule of mandate and law of the case doctrines. See Fraschilla , 235 B.R. at 458.

Ultimately, as plaintiffs assert, the Parra II Court's finding of commonality (as distinguished from its rationale) might be "unaffected." Pls.' Supp. Br. (Doc. 302) at 6:13 (citation omitted). It also may be, as plaintiffs assert, that Dukes "does not require a re-examination of [prior] factual findings[] in this case. See Pls.' Reply (Doc. 303) at 6:8-9 (emphasis added). Nevertheless, this court cannot disregard Dukes, which altered the legal standards for assessing Rule 23(a)(2) commonality.

b. Dukes

The Dukes plaintiffs alleged "that the discretion exercised by their local supervisors over pay and promotions matters violate[d] Title VII by discriminating against women." Dukes , 131 S.Ct. at 2547. The Dukes plaintiffs attempted to demonstrate the common issue of company-wide gender discrimination chiefly through three different "forms of proof[.]" Dukes , 131 S.Ct. at 2549. First, the plaintiffs relied upon "statistical evidence about pay and promotion disparities between men and women at the company[.]" Id . Second, they relied upon "anecdotal reports of discrimination from about 120 of Wal-Mart's female employees[.]" Id . Third, the plaintiffs relied upon "the testimony of a sociologist, ..., who conducted a social framework analysis' of Wal-Mart's culture' and personnel practices, and concluded that the company was vulnerable' to gender discrimination." Id . (citation omitted). In dismantling the nation-wide class, a five justice majority in Dukes held that plaintiffs did not show commonality because they did not "provide... convincing proof of a companywide discriminatory pay and promotion policy[, ]" and hence they did "not establish[] the existence of any common question[, ]" as Rule 23(a)(2) mandates. Id. at 2556-57.

Summarizing the commonality requirement, Justice Scalia wrote, that it "requires the plaintiff to demonstrate that the class members have suffered the same injury[, ]'" not "merely that they have all suffered a violation of the same provision of law." Id. at 2551 (quoting Falcon , 457 U.S. at 157, 102 S.Ct. 2364). To show that they have suffered the same injury, plaintiffs' "claims must depend upon a common contention, " according to the Dukes Court. Id . That common contention, in turn, "must be of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each [claim] in one stroke." Id . Such a common contention was missing in Dukes because there was not "some glue holding the alleged reasons for all [of] those [individual employment] decisions together[.]" Id. at 2552 (emphasis in original). Therefore, it would "be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored. " Id . (emphasis in original).

Rejecting plaintiffs' statistical evidence, the Dukes Court found that "[e]ven if... taken at face value, " such evidence was "insufficient to establish that [plaintiffs'] theory c[ould] be proved on a classwide basis." Id. at 2555. "Merely showing that Wal-Mart's policy of discretion had produced an overall sex-based disparity does not suffice." Id. at 2556. The "more fundamental" failure in plaintiffs' proof though was their failure to "identif[y]" [a] specific employment practice' - much less one that ties all their 1.5 million claims together." Id. at 1255-56. Plaintiffs' anecdotal evidence in Dukes was similarly defective and "too weak to raise an inference that all the individual, discretionary personnel decisions are discriminatory[, ]" because it did not focus on particular Wal-Mart stores. Id . Thus, because the plaintiffs did not provide "convincing proof of a companywide discriminatory pay and promotion policy, " the Dukes Court held that they did "not establish[] the existence of any common question." Id . (footnote omitted).

c. Analysis

Before considering whether plaintiffs have shown commonality post-Dukes, it is necessary to clarify the scope of their pay claim. Since seeking class certification in 2004, plaintiffs have severely restricted the scope of that claim. Originally, plaintiffs' pay claim had encompassed a pay policy purporting to have "elements of local manager subjectivity[, ]" Pls.' Supp. Br. (Doc. 302) at 18:27, n. 9, the so-called, "Subjective Placement claim[.]" Pls.' Reply (Doc. 303) at 5:16-17. Plaintiffs unequivocally declare that they "did not pursue that policy on... appeal... and no longer seek certification of that claim[, ]" however. Pls.' Supp. Br. (Doc. 302) at 18:27-28, n. 9.

Another component of plaintiffs' pay claim had been Bashas' alleged failure to pay Sunday premiums to Food City employees. Plaintiffs make only "passing reference" to the Sunday premiums; and, more importantly, they have not come forth with any factual support for this claim, as Bashas' accurately notes. See Def.'s Supp. Br. (Doc. 301) at 2:26, n. 2 (citation omitted). Furthermore, as Bashas' also correctly notes, "[p]laintiffs never raised this [issue] again and neither this Court nor the [Ninth] Circuit... addressed it." Id. at 2:27-28, n. 2. Plaintiffs have, therefore, implicitly abandoned the Sunday premiums aspect of their pay claim. Through their actions or, as the case may be, inaction, plaintiffs' pay claim now consists solely of what they describe as Bashas' "written Two-Tiered Wage Scale [("the wage scale")][.]"[12] Pls.' Reply (Doc. 303) at 5:17-18. The court will limit its analysis accordingly.

Plaintiffs are pursuing two closely related, although not identical, theories of discrimination with respect to Bashas' wage scales - disparate treatment and disparate impact.[13] See Pls.' Supp. Br. (Doc. 302) at 17:28-18:2. Borrowing from Dukes, plaintiffs assert that they do have a common answer to the "crucial question" posed therein, " [w]hy was I disfavored ?" See Dukes , 131 S.Ct. at 2552 (emphasis in original). The common answer, plaintiffs posit, is because Bashas' "adopted a lower wage scale for predominantly Hispanic Food City employees doing the same work as their white counterparts at Bashas' and A.J.'s Fine Foods." Pls.' Supp. Br. (Doc. 302) at 17:26-28. Thus, regardless of which theory their pay claim is grounded upon, plaintiffs contend that they have met Dukes' commonality standard because "[r]esolution of whether Bashas' [pay] policy violates Title VII and Section 1981... will resolve the question for all class members." Id. at 17:23-25.

Bashas' responds that commonality is lacking because, as in Dukes, the plaintiffs "cannot provide proof of a companywide discriminatory pay practice." Def.'s Supp. Br. (Doc. 301) at 12:24 (emphasis omitted). Bashas' further responds that, also like Dukes, neither plaintiffs' statistical nor their anecdotal evidence suffice to establish commonality. Patterning its argument after the evidentiary shortcomings in Dukes only serves to lay bare the flaws in Bashas' commonality analysis, however. Although Bashas' assails the evidence of plaintiffs' statistician, Dr. Richard Drogin, it cannot now distance itself from "three significant... conce[ssions]" it made earlier in this litigation. See Parra II , 536 F.3d at 979. Bashas' retained Dr. Michael P. Ward, an economist and statistician, to refute Dr. Drogin's statistical analyses. Dr. Ward conceded these conclusions reached by Dr. Drogin:

(1) Food City Stores have a higher percentage of Hispanic employees compared to Bashas' or A.J.'s stores, (2) the pay scales at Bashas' and A.J.'s stores were higher than those at Food City during the period 1998-2000, and (3) Hispanic employee hourly rates were lower in similar jobs.

Id.; see also Parra I, 2005 WL 6182338, at *16 (same). Bashas' wage scales, in combination with these concessions, provide the "convincing proof of a companywide discriminatory pay... policy" missing from Dukes. See Dukes , 131 S.Ct. at 2556.

Indeed, even prior to Dukes, the Ninth Circuit was similarly convinced, explaining that:

These pay scales were common for all Bashas', Inc. employees and provided for different pay for similar jobs based only on the store where the employee worked. The proposed class here shares the alleged discriminatory pay scales of Bashas', Inc. The class definition seeks to reach those Hispanic employees who suffered past discrimination under these pay scales.

Parra II , 536 F.3d at 979. The foregoing seriously erodes Bashas' assertion that plaintiffs have not shown commonality because Dr. Drogin "fail[ed] to "identify... a specific employment practice' or one that impacts all of the individuals in the proposed class." Def.'s Supp. Br. (Doc. 301) at 10:24-26 (citing Dukes , 131 S.Ct. at 2555).

Relatedly, the foregoing also deeply undercuts Bashas' bald assertion that commonality is lacking because the plaintiffs cannot show that they "have suffered the same injury[.]'" Def.'s Supp. Br. (Doc. 301) at 9:14-15 (quoting Dukes , 131 S.Ct. at 2551) (emphasis added by Bashas'). The putative class members have suffered the same injury: they received lower wages than their Caucasian counterparts at A.J.'s and Bashas' stores at least "during the period 1998-2000[]" when, it is undisputed, that "the pay scales at Bashas' and A.J.'s stores were higher than those at Food City[.]" See Parra II , 536 F.3d at 977 ("according to [Bashas'] pay scales, the hourly pay disparities for comparable jobs at the three brand named stores ranged from $0.15 per hour to $2.94 per hour[, ]" which "translate to annual salary differences of around $300 per year to almost $6, 000 per year[]"). Thus, unlike Dukes, this is not a "mere claim by [current and former Food City] employees that they have suffered a Title VII injury, or even a disparate-impact Title VII injury[.]" See Dukes , 131 S.Ct. at 2551. Rather, as is evident, plaintiffs' pay claims can "productively be litigated at once." See Id.

In addition, Bashas' attacks on plaintiffs' statistical evidence are largely immaterial because they are directed primarily at Dr. Drogin's regression analyses, which plaintiffs offered to support their "Subjective Placement claim[]" - a claim they are no longer pursuing.[14] Pls.' Reply Br. (Doc. 303) at 7:1-2 (footnote omitted). Bashas' fares no better with its attacks on plaintiffs' anecdotal evidence - declarations from 13 former and current Bashas' employees. As with their statistical evidence, Bashas' contends that plaintiffs cannot establish commonality because, their anecdotal evidence, inter alia, does not "provide significant proof' that [Bashas'] operated under a general policy of discrimination[.]'" Def.'s Supp. Br. (Doc. 301) at 11:9-10 (quoting Dukes , 131 S.Ct. at 2553). Plaintiffs counter, and the court agrees, that their anecdotal evidence is "unnecessary to establish commonality[, ]" Pls.' Reply (Doc. 303) at 7:15 (emphasis omitted), given the "three significant conclusions conceded by Bashas'" and identified above. See Parra II , 536 F.3d at 979.

Of equal import is that Bashas' written, non-discretionary, centralized wage scale under which, as plaintiffs allege and the evidence indicates, Hispanic Food City hourly employees were paid less than their Caucasian counterparts at Bashas' and A.J.'s stores, is precisely what was missing in Dukes. See Dukes , 131 S.Ct. at 2548 (emphasis added) ("These plaintiffs... do not allege that Wal-Mart has any express corporate policy against the advancement of women.") Bashas' wage scales "provide the glue' the Supreme Court sought - but did not find - in Dukes, sufficient to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored. " Ellis II, 285 F.R.D. at 530 (emphasis in original) (quoting Dukes , 131 S.Ct. at 2552).

So, for example, if a trier of fact finds that Bashas' wage scales "lead to disparate outcomes[, ]" that "is a common question subject to classwide proof and rebuttal." See Id. at 531. In the parlance of Dukes, determining the "truth or falsity" of whether Bashas' wage scales violate Title VII or section 1981 in the manner alleged "will resolve in one stroke[]" an issue that is "central to the validity" of each class member's pay claim. See Dukes , 131 S.Ct. at 2551; see also Evon v. Law Offices of Sidney Mickell , 688 F.3d 1015, 1029 (9th Cir. 2012) (quoting Dukes , 131 S.Ct. at 2551) (claim that defendant violated the Fair Debt Collection Practices Act by sending "collection notices addressed to the debtor, but in care of' the debtor's employer, without first obtaining consent[, ]... is a common contention among the class and determination of its truth or falsity' is pivotal to this lawsuit and is capable of determination in one stroke[]'"). "This case, " at least insofar as the equal pay claim is concerned, "presents the classic case for treatment as a class action: that is, the commonality linking the class members is the dispositive question in the lawsuit." See Evon , 688 F.3d at 1030 (internal quotation marks and citation omitted).

Notably, "commonality only requires a single significant question of law or fact.'" Mazza, 666 F.3d at 589 (quoting Dukes , 131 S.Ct. at 2556) (emphasis added). Further easing a plaintiff's burden at this stage is that Rule 23(a)(2)'s commonality requirement is to be "construed permissively, and "[a]ll questions of fact and law need not be common to satisfy the rule." Ellis I , 657 F.3d at 981 (internal quotation marks and citation omitted); see also Evon , 688 F.3d at 1030 (internal quotation marks and citation omitted) ("It is not necessary that members of the proposed class share every fact in common.") Plaintiffs thus have a "limited burden under Rule 23(a)(2)[.]" Mazza, 666 F.3d at 589. Consequently, even in the wake of Dukes, for the reasons outlined above, this court has little difficulty finding that a class proceeding herein has "the capacity to generate common answers apt to drive the litigation" insofar as the equal pay claim is concerned. See Dukes , 131 S.Ct. at 2551 (internal quotation marks and citation omitted) (emphasis in original); see also Gales v. Winco Foods, 2011 WL 3794887, at *2 (N.D.Cal. Aug. 26, 2011)(finding commonality where plaintiff identified an employer's policy of exempting from overtime all assistant managers). No individualized inquiry is necessary to determine whether Bashas' wage scales violate federal law.

While not alone dispositive, the difference in scale between Dukes further underscores why Dukes does not preclude a finding of commonality here. Dukes was "one of the most expansive class actions ever[, ]" comprised of approximately 1.5 million members. Dukes , 131 S.Ct. at 2547. Moreover, the Dukes plaintiffs "held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3, 400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed." Id . (internal quotation marks and citation omitted). Additionally, the plaintiffs in Dukes were challenging "literally millions of employment decisions." Id. at 2552, 2556 n. 9. Given this factual scenario, the court agrees with Judge Sand's astute observation in Chen-Oster v. Goldman, Sachs & Co. , 2012 WL 2912741 (S.D.Cal. July 17, 2012):

The Supreme Court suggested (when not explicitly stating) that the sheer size of the class and the vast number and diffusion of challenged employment decisions was key to the commonality decision. This makes a great deal of sense when the purpose of the commonality enquiry is to identify some glue holding the alleged reasons for all of [the challenged] employment decisions together.'

Id. at *3 (quoting Dukes , 131 S.Ct. at 2552 (emphasis omitted)).

The present case is vastly different. There are not millions of potential plaintiffs here. Nor are the plaintiffs scattered across the nation; they all work or worked at Arizona Food City stores. And, they are not challenging "millions of employment decisions;" rather, at this point, they are only challenging Bashas' decision to pay its employees pursuant to its two-tiered wage scales. These factual distinctions reinforce this court's conclusion that plaintiffs have met their burden of showing commonality as to the equal pay claim.

3. Typicality [15]

Next, plaintiffs must show that "the claims or defenses of the representative parties [are] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Bashas' argues that the claims of named plaintiffs Estrada and Martinez are not typical of those of the putative class because there is no evidence of a shared "common experience[.]" Bashas' Response to Motion for Class Certification ("Def.'s Resp. MCC") (Doc. 190) at 45:9. As to plaintiff Martinez alone, Bashas' argues that because she works as a Food City Tortilla Ria Clerk, and that position has "no comparable position in Bashas' or A.J.'s stores[, ]"[16] her pay claim is "unique to her, " and thus not typical for Rule 23(a)(3) purposes. Id. at 59:21 (footnote omitted); and 61:12. Bashas' also argues that because plaintiff Martinez did not exhaust her administrative remedies, that is a defense unique to her, thus precluding a finding that she is a typical class representative.[17] The court will address the arguments pertaining solely to plaintiff Martinez first.

a. Aurelia Martinez

An integral part of Bashas' exhaustion argument is that because Ms. Martinez's pay claim is unique, plaintiff Estrada's Equal Employment Opportunity Commission ("EEOC") charge, among others, did not provide Bashas' with adequate notice of her pay claim. So before considering Bashas' exhaustion argument per se, the court first must decide whether plaintiff Martinez's pay claim is unique.

i. "Tortilla Ria Clerk" [18]

Bashas' argues that plaintiff Martinez's pay claim is "unique to her[]" because she works as a Food City Tortilla Ria Clerk, and that position has "no comparable position in Bashas' or A.J.'s stores."[19] Def.'s Resp. MCC (Doc. 190) at 61:12; and 59:21 (footnote omitted). Disagreeing, plaintiffs assert that a Tortilla Ria Clerk is the "equivalent" of a Donut Fryer, [20] and thus, plaintiff ...


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